George v. United States

Twenty two assignments of error are alleged in the petition, and are argued in the brief.

The principal question presented is set forth in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, fifteenth, and sixteenth assignments of error. These all go to the competency and sufficiency of the evidence, to show ownership in John Adkins, and nonconsent of said owner to the taking, as alleged, and to show venue, also the conclusion that the verdict is not supported by sufficient evidence. In this case the able counsel for defendant, mindful of the fact that larceny is the most technical in its distinctions of all common-law felonies, interposed continuous objections to the testimony offered, and said assignments of error involve, first, the objections so made and exceptions taken; second, the refusal to give instructions requested, predicated upon the proposition that all of said testimony was hearsay, and therefore incompetent. In support of his contention counsel for Appellant cites the cases of Oxier et al. v. United States, 1 Ind. Ter. 85, 38 S.W. 331; Cannada v. State, 29 Tex. App. 537[29 Tex. Crim. 537], 16 S.W. 341. We do not believe that the rule enunciated in the foregoing cases applies to this case at bar. To support a conviction there must be evidence that the property in question was actually stolen. In what manner may this proof be made? Must it always be direct and positive? Is it absolutely essential in all cases that the proof of the corpus delicti should be established independent of the other elements of the offense? In many, and perhaps most, cases to support a conviction, direct proof that the property was feloniously taken from the person named in the indictment as owner is necessary. Yet it is not essential in all cases that there should be any direct evidence upon this point. The application of the rule must always depend upon the facts of the case. Appellate courts should carefully consider and guard against so construing the law that a proper rule of evidence would be preverted into a means of escape from the merited punishment of an offender. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense. Mr. Bishop, in discussing the subject, says:

"If we look at the matter as one of legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of the facts any more than of any other." (1 Bishop on Criminal Procedure, § 1071).

Mr. McClain says:

"The corpus delicti need not be shown by direct evidence, that is, there need not necessarily be proof of loss of property by theft distinct from the fact showing that property found in the defendant's possession was wrongfully taken from the owner thereof. Proof of the act is not necessary where the circumstances can only be explained by a felonious act." (1 McClain on Criminal Law, § 612).

Neither is it essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence.

"Absolute positive evidence is not necessary to establish thecorpus delicti of a crime, but proof thereof may be made by circumstantial evidence; and, if there is a reasonable inference deducible from the evidence of the existence of the corpusdelicti, it is the duty of the court to submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury." (Martin v. State, 125 Ala. 64, 23 So. 92 — following Granison v. State, 117 Ala. 22, 23 So. 146;Roberts v. State, 61 Ala. 401.)

"The same general evidence of property is admissible in criminal cases as in civil cases. Possession with general acts of ownership over the horse are sufficient to warrant a verdict where there is no evidence offered to rebut or contradict the right of property." (Barnes v. People, 18 Ill. 52 65 Am. Dec. 699).

It never was the rule of the common law that nonconsent must be shown, and that the owner of the stolen property must be produced as a witness to prove such nonconsent, and consent is a matter simply of defense. The present laws of our state provide a penalty for stealing domestic animals, but do not define the offense, but simply provide that, if any person shall steal the animals mentioned, he shall be guilty of a felony. Therefore the common-law rule now applies to our state, but here in this case nonconsent is averred in the indictment and must be proved. We believe the evidence offered was sufficient. Mr. McClain in discussing the question says:

"Where the question of want of consent of the owner becomes material, it is not necessary to prove such want of consent by the evidence of the owner himself. It may be shown by others having knowledge of the facts." (1 McClain on Criminal Law, p. 558).

In People v. Jacks, 76 Mich. 218, 42 N.W. 1134, Sherwood, C.J., in speaking for the court, says:

"We think the fact of nonconsent to the taking may, however, be proved by any other person having knowledge of the facts as well as by the owner or the person having control of the property at the time, or by facts and circumstances which sufficiently satisfy the jury that the property was feloniously taken."

In Kemp v. State, 89 Ala. 52, 7 So. 413, the court says.

"There was evidence tending to connect the defendant with the commission of the offense charged. His presence sufficiently near the scene of the crime to have been the author of it, and the evidence that he was provided with the means with which the act was done, appears in evidence. It further appears that he hastily left the immediate vicinity. This was certainly proper to go to the jury as a basis for an inference of guilt. * * * The fact that the owner caused search to be made for the stolen property is a cogent circumstance to show want of his consent to the taking."

Rapalje on Larceny and Kindred Offenses, § 135; Rains v.State, 7 Tex. App. 588[7 Tex. Crim. 588];State v. Osborne, 28 Iowa 9; People v.Dean, 58 Hun. 610, 12 N.Y.S. 749; Spruillv. State, 10 Tex App. 695 [10 Tex. Crim. 695].

It is also insisted that the evidence is insufficient to show venue. We think the fact that the larceny was committed within the jurisdiction of the Central District of the Indian Territory was sufficiently proved, and no error was committed by the trial court in so ruling.

We have set out the evidence somewhat in detail, for the purpose of showing that it presented a proper case for the determination of the jury under the authorities above quoted. The circumstances shown, standing as they do wholly uncontradicted and unexplained, lead to but one natural conclusion, namely, that the larceny charged was committed, and that the defendant, Campbell George, committed it. On the Sunday the horse disappeared he and Walter Vail were seen by various witnesses near the camp of John Adkins. They left there that day or night, and on the next day were seen near Mill Creek, defendant with the Adkins horse, and Walter Vail with the witness' (Ward's) horse. They were riding rapidly westward. The horse defendant was riding had been roached. It is shown that John Adkins immediately instituted a search for his horse, and with witness Riddle found, near his home, where the horse had been roached. He then, with Riddle, traced and followed his horse to Walter Vail's in the "Pott" country. They found Walter Vail gone from his home. Riddle then, on Adkins' request, proceeds to the Comanche country, and finds at the place of the defendant's brother, Bob George, Adkins' horse and Ward's horse, which had been stolen about the same time. Riddle takes possession of Adkins' horse, brings him back, and delivers him to Adkins. The horse is identified by two witnesses as the one defendant had possession of. The effect to be given to the foregoing facts is strongly re-enforced by the failure to explain defendant's possession of the horse, or to offer the testimony of his brother, Bob George, or Walter Vail. After a careful examination of the record we find there is no such absence of evidence of guilt as to warrant the interference of this court, and we have no hesitation in saying that the facts and circumstances thus shown, when all taken together, and in the absence of any explanation, are sufficient to produce in the minds of reasonable men an irrestible conviction of the defendant's guilt.

The next errors assigned, being the twelfth, thirteenth, and fourteenth, go to the question of the sufficiency of the instructions on circumstantial evidence, and the refusal of the court to give the instructions requested by defendant. One of the instructions so requested is as follows:

"The court instructs the jury that the facts relied upon to show the defendant's guilt must not only be inconsistent with his innocence, and, if the facts are susceptible of two interpretations, one of innocence and one of guilt, the interpretation of innocence must be accepted on the defendant's behalf."

This was refused by the court, and the jury was instructed as follows:

"To work conviction, each of the necessary allegations to establish the guilt of the accused must be proven by competent evidence beyond a reasonable doubt, and the facts and circumstances proven must be not only inconsistent with the innocence of the accused, but inconsistent with any other conclusion but that of guilt."

This instruction is not as complete as it should be, but in our opinion it is as clear and complete as the instruction requested, and under the rule that, where a similar instruction has been given, a requested instruction need not be given, in our opinion no error was committed.

The seventeenth assignment of error is based upon the fact that, after resting the case, defendant declined to offer any testimony. The United States attorney immediately requested that the case be reopened for the purpose of introducing further evidence as to the citizenship of the defendant. The court granted this permission over the objection of defendant. This request was addressed to the sound discretion of the trial court, and, unless it appears that such discretion was abused to the prejudice of the substantial rights of the defendant, this court cannot consider the same. In our opinion there was no error in the ruling of the trial court.

The eighteenth, nineteenth, twentieth, and twenty-first assignments of error are predicated upon the proposition that there was none other than opinion and hearsay evidence offered to sustain the allegation of the indictment that the defendant was not then and there a member of any Indian tribe or nation, and there was no competent evidence in proof of said allegation.

"To establish pedigree, family hearsay is essential, since, if what has been handed down in families cannot be in this way proved, pedigree could not in most cases be proved at all." (Wharton's Crim. Ev. § 233. See, also, 234).

In Comstock v. State, 14 Neb. 205, 15 N.W. 355, Lake, C.J., says:

"The next objection is to the ruling of the court on the admission of evidence. The prosecuting witness was asked what relation she bore to the prisoner, and answered that she was his daughter. It is claimed that this was incompetent testimony, for the reason that the fact of her parentage was one of which necessarily she could know nothing except as hearsay. We do not regard this objection as sound. It is certainly competent for one who from his earliest recollection has been a member of one's family, given his name, and reared in the belief, and in all ways given to understand that he is a son in the household, to testify of his parentage. His testimony may not be satisfactory or conclusive of the fact, but it is at least admissible for what it is worth in the minds of the jury, and clearly sufficient to make a prima facie case, thus throwing the burden of overcoming it upon him who controverts it."

To the same effect is the doctrine in the case of Reed v.State, this being a case where Wyandotte Indians were passing through Desha county, Ark., and camped for a few weeks in a white settlement, and while there one of their number was killed by defendant, Reed. Trial and conviction was had and an appeal taken to the Supreme Court of Arkansas, one of the grounds being that, as deceased was alleged to be a Wyandotte Indian, proof of the same was essential, and could not be made by hearsay evidence. Chief Justice English in delivering the opinion of the court, among other things, said:

"The court below was right in deciding that it was competent to prove by common reputation that the deceased was a Wyandotte Indian. The people of this country being generally Anglo-Saxon, a person coming into any community of a different race bears upon him such peculiar marks of his nationality as to enable the community very soon to form an opinion in reference to it sufficiently certain for all the purposes of legal identity. It stands upon the same footing as with the proof of pedigree. The witness Sexton stated that he heard from those with the Indian that was killed that he was a Wyandotte Indian, and to this evidence the defendant objected, and excepted to its admission by the court. This statement, if taken by itself, is not satisfactory, but, when taken in connection with the testimony of the other witnesses who testified on the trial, it was doubtless competent evidence. * * * These remarks are made in reference to the competency of the testimony. The jury were the judges of its sufficiency upon this point as upon others."

We think the testimony offered on behalf of the government was competent, and at least clearly sufficient to make a primafacie case. In our opinion the trial court committed no error in ruling that said testimony was competent.

It is claimed in conclusion, by the twenty-second assignment of error, that the court errer in delivering to the jury the certified copy of the indictment containing a copy of the former verdict printed upon it, the name of Campbell George, and the name of the foreman having been added to the printed form. The record shows that no objection was made on the part of the defendant to this certified copy, and counsel for defendant offers no argument in support of this last assignment. It is a rule of this court that assignments of error based upon rulings where the record shows that no objection was made, and where no exception was taken, will not be considered by this court, except in the interest of justice.

We believe the defendant had a fair and impartial trial. Under the well-settled rule, where there is sufficient evidence in the record upon which the verdict may be fairly based, as in this case, this court will not reverse the judgment on the ground of the insufficiency of the evidence. We find no prejudicial error in the record, and for the reasons given in this opinion the judgment of the United States Court of the Central District of Indian Territory must be affirmed.

Judgment affirmed.

FURMAN, PRESIDING JUDGE, and BAKER, JUDGE, concur.

On Motion for Rehearing. Denied February 20, 1909.