Davis v. State

Counsel for plaintiff in error contends that the court erred in not sustaining the motion for a new trial, because there was not sufficient evidence to sustain the verdict, and in the brief states:

"We submit there is no evidence in the record which tends to connect the defendant with the crime of stealing, unless it be that of his possession of the cattle. This cannot be considered a circumstance even against him; for the manner in which he obtained possession of the cattle is fully explained by himself and his witnesses."

We have considered the record in its most favorable light to the defendant, and we cannot agree with this contention. Our opinion is that the evidence is sufficient to sustain the conviction; and, while the defendant offered evidence tending to show that he purchased the cattle from Cliff Sellers and Dan Foster, the jury found against him. It is undisputed that the stolen cows were in the defendant's possession immediately after they were stolen; and it is shown that the defendant disposed of them, together with other stolen cattle, by driving them across the country, a distance of about 20 miles, to the town of Checotah, and there shipped them to Kansas City.

The record discloses that Sellers and Foster were not owners of cattle or other property, and the defendant knew of such fact; that Sellers was an employee of Pony Starr; and that Sellers, Foster, Pony Starr, and the defendant were at all times acting together in respect to these cattle, and when the defendant was arrested for the theft of the cattle Sellers and Foster disappeared from the country.

The possession of property, recently stolen, is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury in connection with the other evidence in the case. Mr. Bishop says:

"When the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror's opinion." (2 Bish. New Cr. Pro. par 740.)

A question merely of fact is presented by the evidence, dependent wholly upon the credibility of the witnesses and the weight of their evidence. There could be no case suggested presenting a matter more proper for the decision of a jury. The jurors are the sole judges of the credibility of the witnesses who testify before them; and they are not bound to, nor can they be compelled to, credit the testimony of any witness, whether contradicted or not. When a jury returns a verdict of guilty in this character of a case, it indicates that the explanation of the defendant's possession, no matter how plausible, was not believed by the jury; and, unless, upon a fair consideration of all the facts and circumstances in evidence, it appears that the jury were not governed by the evidence in their finding, the verdict will not be disturbed on the ground of insufficiency of the evidence.

Certain misconduct on the part of the prosecuting attorney during the trial is alleged. The prosecuting attorney, when the witness Nester testified, made a statement in the presence of the jury. The record, in respect to this alleged error, is as follows:

"Mr. Disney: Now, at this time, I desire to ask Mr. Rutherford if he will not agree to let this be considered in evidence and used in the other cases against this defendant. Mr. Rutherford: I desire to object to that statement. We are trying this case, and not any other case. I want the court to instruct the jury that any remark made by the county attorney in their presence to be disregarded; that is, the remark about the other cases. Judge De Graffenreid: Gentlemen of the jury, you are instructed not to consider the remark made by Mr. Disney with reference to the other cases against this defendant. Mr. Rutherford: I desire to save an exception to the statement and remark of Mr. Disney."

It appears that counsel for defendant at the time requested the court to instruct the jury to disregard any remark made by the prosecuting attorney in their presence; and the court very promptly, at the suggestion of counsel, so instructed the jury. Counsel at that time certainly thought that the error could be cured by the court's instruction; else why the request? If the court could cure the error at the time, and complied with counsel's request, why should counsel now complain? Especially is this true, we think, in view of the fact that all along throughout the record it is made to appear that other cattle were missed from the same range that these cows were taken from about the same time that these cows were alleged to have been stolen; and, at the time the defendant shipped these particular cattle to Kansas City, he shipped at least 32 head of other cattle that were branded and marked with the brands of well-known citizens of that community; and it was not attempted to be concealed by the defendant, or by anybody, in so far as this record discloses, that other larcenies of other cattle from other people occurred about the time these cows were stolen.

When the defendant's possession of property, recently stolen, is attempted to be accounted for, it is competent to show the defendant's contemporaneous possession of other stolen property. For the reason stated, we think that whatever error, if any, was created by the remark of the prosecuting attorney was cured by the instructions of the court to the jury to disregard the same.

Lastly, it is contended that the trial court erred in forfeiting the defendant's bond in open court, because the defendant did not appear when court convened pursuant to adjournment during the trial. Counsel claims: "This could have been done quietly and without calling attention of the fact to the jury, if it had been necessary at all." If the defendant did not wish to have his bond forfeited, he should have appeared according to its conditions; and he cannot be heard to complain of the action of the court that was caused by his own laches. Counsel cites no authority in support of this contention; but states that the forfeiture was occasioned by a misunderstanding on the part of the defendant and his counsel as to the hour to which the court adjourned. As the record discloses that the proceedings continued regularly after the forfeiture was had, we presume the proper explanation was made, and the forfeiture set aside. The court did nothing more than its duty under the law. It must therefore be presumed that the action of the court was without bias, and was not prejudicial to the substantial rights of the defendant. The other assignments of error were abandoned in the argument of the case. The foregoing being all the assignments presented to the court, both in the brief and oral argument, we shall consider the others as waived.

We think the evidence well supports the verdict. The defendant had a fair trial, and his conviction was an act of justice.

Perceiving no prejudicial error in the record, the judgment of the district court of Muskogee county is affirmed.

FURMAN, P.J., concurs; ARMSTRONG, J., not participating.