State v. Gurnee

14 Kan. 111

• Court: Supreme Court of Kansas
• Decided: July 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Kingman, C. J.:

This was a prosecution for maliciously cutting down and carrying away a lot of growing wheat.. It was originally tried before a justice of the peace, where a conviction was had. On appeal to the district court, it was again tried, with the same result. Erom that court the appellant brings the case to this court, alleging many errors, which will be noticed in their order.

I. It is said that there is no proof that appellant assisted in cutting the wheat, or in carrying it away, or that he was on the wheat-field at all; and therefore the verdict is not sustained by the evidence. It is true, that no witness testifies that appellant was on the ground; but it is in evidence that the twenty-two men and three teams that did the work were employed by appellant for that purpose, and that the wheat was hauled to his farm and stacked there. Many other facts are detailed in the evidence, going to show that if any offense was committed, it was done by the procurement of the appellant solely. If the offense were felony, these facts would have rendered him liable as accessary before the fact, if not as principal; but in a misdemeanor, where there are no accessaries, but “all persons concerned therein, if guilty at' all, are principals,” he may on such evidence be found guilty as principal, if the necessary facts are established. (4 Blackstone’s Com., 34; Crim. Code, §115, Gen. Stat., 839.)

II. Two witnesses were allowed to state what one C. J. Cleveland said while in possession of the land as to the extent of his possession. Whatever diversity of opinion existed at one time on this question, it seems now well settled that declarations of this character by one in possession are admissible as part of the res gestae. 1 Greenl. Ev., § 109. The authorities on this point are collated in note 81, vol. 1, p. 153 of Cow. & Hill’s notes to Phillips on Evidence.

III. A copy of a submission and award was admitted in evidence. It is claimed that this copy was improperly admitted, because there had been no sufficient foundation laid by using proper means to obtain the original, and • because the signatures to the original had not been proven genuine. This evidence was important. The submission was between the appellant and Cleveland. The award showed that the possession of the south-half of a certain quarter-section of land was rightfully, in Cleveland, and it was on this half that the wheat was grown. The man that broke the ground, and sowed the wheat, held under Cleveland. Before offering the copy in evidence the state had shown that when the award was made it was in writing; that the submission and award had been made out in duplicate, and one given to each of the parties; that the copy was a true copy of the original given to Gurnee; that the witness did not know where the originals were; that Cleveland was (lead, and had told witness that he had lost his copy, and the copy offered in evidence was taken at the instance of Cleveland. The county attorney also testified that he did not have the originals, nor had he any means of obtaining them. We think this was sufficient foundation for the introduction of the copy. One of the originals was lost, its owner dead. The other was in the possession of appellant, and there was no power in the state to compel its production as evidence against himself. The second objection rests in a misapprehension of the facts. The witness who presented the copy testified that he was one of the arbitrators, that the award was made in writing, and that the paper offered was a true copy of the award so made. We think that was sufficient. The controversy as to whether one Bright signed the award or not, arose afterward. The state made a sufficient prima fadie showing of its genuineness to authorize its admission.

IV. ' The fourth error is the refusal of the court to allow a witness, A. G. Newton, to testify as to whether at the time he took a deed for the land he had notice of the fact that.the submission and award had been set aside, and a new contract had been entered into by which Cleveland was to have a life lease for only twenty acres of the south half-quarter-section, with a dwelling house on it, and that Gurnee was to have the rest of the quarter-section. At the time this question was asked no attempt had been made to prove that such a contract had ever been made, nor was any suggestion made that such proof would be offered. Under such circumstances the court was justified in refusing to permit an answer. This evidence was inadmissible on another ground. George H. Newton claimed to own the wheat as the lessee of Cleveland. To prove that his father, A. G. Newton, had notice of Gurnee’s claim was inadmissible in this suit. It is true that A. G. Newton had told his son that when his title was perfected he would deed him the land; but this gave George H. Newton no rights, and in no way threw any light on the questions at issue.

V. It is insisted that the court erred in admitting in evidence the papers and docket entries of a justice of the peace in a case for an unlawful detainer, wherein the appellant was plaintiff and Cleveland and another were defendants. This evidence tended directly to show that at a certain time (which was subsequent to the time when it is claimed the award was set aside and a new contract made,) Cleveland, by Gurnee’s admission, was in possession of the south-half of the quarter-section, and that Cleveland claimed that that possession was lawful. The evidence being admissible for one purpose, and nothing appearing that it was used for any other purpose, it is useless to discuss the other questions raised by appellants.

VI. The court at the instance of the counsel for the state gave certain instructions, numbered from one to twenty. Eighteen of these we are told are wrong, but no error is pointed out or suggested. It was the duty of counsel to point out errors, if any existed; and the failure to do so may be relied on as sufficient assurance that there are none. They seem correct. Some of them enunciate principles as old as the common law. Under the circumstances we do not feel called upon to pass upon them.

VII. The counsel for appellant asked thirty-two instructions; twenty-two of them were given. We have examined those refused, and think they were properly refused, and will indicate the reasons briefly. The 4th-instruction was to the effect that if the land on which the wheat was cut was not the land of Newton, (the man who sowed the wheat,) the verdict must be for the defendant. The counsel for appellant insist that the person owning the fee must be named in the information, and the fact proved as laid. This point is made in the motion for arrest of judgment, but may as well be considered here as elsewhere. The information charges the land to belong to George H. Newton, and the testimony abundantly shows that he held under a lease from Cleveland, and that appellant also claims under Cleveland by a verbal contract made with him. The offensé charged is one plainly under § 107 of the crimes-and-punishment act, p. 338, Gen. Stat. It is also an offense under § 1 of ch. 113, p. 1095. Under the first of these sections we do not think it necessary that it should be proven that the party injured is the owner of the land in fee. It would be as much an offense, for the landlord, who owns the fee, to enter upon his tenant’s possession, and sever therefrom and carry away the growing crops, as it would be for a Stranger.' The language of the section does not require such a construe-' tion. It is the injury to the “property of another,” that is the offense, not injury to the land alone. In this case the fee was not in Newton. The appellant says that the fee was in the United States, and that is probably true. If so, no one had any but possessory rights, except the government. This possessory right was shown to be in Newton, under Cleveland. Unless the language requires it, we should be reluctant to hold that such possessory rights could be invaded by the strong hand, and no remedy but an action of trespass against persons who in most cases are not responsible. The decision in the case of The State v. McConkey, 20 Iowa, 575, seems to be in opposition to this view; but the reasoning of that case is right, and not in conflict with this opinion. As to ownership, the court charged that, to authorize a conviction, the state must prove beyond a reasonable doubt, that the grain cut was standing on land .not belonging'to defendant ; that defendant had no right or interest in the grain so alleged to have been cut and carried away; a peaceable possession of the land on the part of the prosecuting witness at the time of plowing the land, and sowing the grain; a lawful right to that possession as against defendant, and a possession of the land on the part of the prosecuting witness at the time the wheat was cut. The 6th instruction professed to state what was evidence of possession, and in the main correctly, but failed to include those qualifying facts necessary to make it applicable to the evidences, and was therefore properly refused. The 11th. instruction was refused. It is an absurdity. It is as follows:

“11th. That if either of two theories should be adopted by the jury from all the evidence, one of such theories consistent with the innocence of the defendant, and the other consistent with his guilt, then I charge you that you may adopt the theory which is consistent with the innocence of the defendant.”

If the jury adopted a theory consistent with the innocence of defendant, they were bound to acquit; and this instruction authorized them, if from the evidence they adopted a theory of the guilt of defendant, they might acquit. The 14th instruction could have been no guide to the jury. It was a guide for the court, and one which the record shows the court was governed by.

VIII. The 18th, 19th, and 20th instructions were in reference to the arbitration, and as abstract propositions of law are probably correct. If testimony for defendant was believed, and one of the arbitrators did not sign it, we think it was not a binding award. But the award was accepted by both parties, and acted on by both. It did not show title, except as against Gurnee, even if genuine. But, valid or void, the proof shows that both parties acted on it, and thus it became in either event evidence of the extent of the possession of the parties. As asked, the instructions would have misled the jury, because they did not contain any allusion to the effect arising from the acceptance of the award by the parties, and an arrangement of the possession of the .land in accordance therewith.

The 21st instruction is not applicable to the case. The defendant had not shown himself the rightful owner of the land; and for the court to have assumed the fact, as asked in the instruction, would have been a grave error. It is not intended to say that the instruction is or is not correct law. We think the 28th is correct law, but if between the making of the verbal contract and the execution of the deed in pursuance thereof, Newton acquired his rights, then Newton would not be affected by a verbal contract of that kind of which he had no knowledge, and the instruction needed this modification to make it applicable' to the case. As it was asked, it ought to have been refused. The 32d instruction is not law, and was properly refused.

The judgment is affirmed.

All the Justices concurring.