State v. Seymour

79 P. 825, 10 Idaho 699, 1905 Ida. LEXIS 14

• Court: Idaho Supreme Court
• Decided: March 8, 1905
• Status: Published

Opinions

AILSHIE, J. —

The defendant in this case was informed against by the prosecuting attorney in and for Fremont county, and charged with the offense of grand larceny, committed by the defendant stealing one horse. A change of venue was granted to the defendant and the trial was had in Bingham county at the February, 1904, term of the district court therein, and the defendant was convicted and sentenced to serve a term of five years in the state penitentiary. He moved for a new trial and the motion was denied, and he thereupon appealed from the judgment and the order denying his motion for a new trial.

The principal contention urged by appellant in this court is that the evidence was insufficient to justify the verdict of the jury, and that there was no evidence to warrant the same. We have carefully examined all the evidence contained in the transcript and shall recite the material facts testified, to by each witness in the case.

The prosecuting witness, George E. Little, was called and examined on the part of the state, and testified that he was the owner of the horse in question; that he had owned him for several years, and had never sold him or otherwise disposed of him and never authorized anyone to take him, and that he was running on the range near his place of residence in the month of June, 1903.

Samuel Harrop was next called and testified that he was sheriff of Fremont county at the time of defendant’s arrest, and as such sheriff arrested defendant on the charge of larceny of this animal; that the arrest was made by him at St. Anthony on the fifteenth or sixteenth day of July, 1903; that he took the horse from the possession of the defendant at that time. He also testified that he had previously seen the defendant riding the horse about the city of St. Anthony, and especially on the fourth day of July, 1903, when there was a large number of people in St. Anthony, he saw the defendant riding the horse about the city and over the grounds where the celebration was being held; that he talked with the defendant on that day about the horse being a nice little horse and discussed the brand with him; said the defendant told him the horse had the three bar brand on him, and says he might have talked some with the defendant about buying the horse; that he was wanting to buy a horse at that time. The sheriff also testified that at the time he arrested the defendant and took the horse that defendant told him that a fellow had written him and asked him to take up a brown horse for him and he had done so, and this was the horse he had taken up.

Ferry Little, a son of the prosecuting witness, testified that he was acquainted with the horse taken from the defendant; that he belonged to his father, George Little, and that the horse was on the range in the early part of June. Further testifying, be said: “I saw him [the defendant] about the 13th of July, 1903, at St. Anthony, and I asked him if he had seen a little brown horse branded three bars on the left shoulder, during his rides, and he said no, he hadn’t noticed him, and described some other horses that the horse was running with, and he said he had seen those and had them in a corral and turned them out, I believe, with the exception of one brown horse; this horse I speak of was a brown horse; had one ear lopped. I believe Mr. Seymour spoke of keeping this horse in the barn and fixing his ear. He said if he should see the horse I was inquiring about he would either send the horse to me or let me know about it. I told him of the three bar brand on the horse.” The witness further testified that the three bar brand was a plain brand and could readily be seen, and that that brand was on this particular horse. That after the arrest of the defendant, the witness went to the county stables in St. Anthony and got the horse, and found his foretop roaehed and his tail trimmed, and that he had two shoes on his front feet; that he had no shoes on him when he was turned out on the range. On cross-examination, the witness said: “I didn’t mention the lazy JH brand on the horse; I didn’t know the brand was on the horse at that time; the first time I noticed it was when I saw the horse in the county stable. Have known the horse four or five years.” Witness further testified that the country was open and unfenced for fifteen or twenty miles around the place where his father lived, and that the horse could have gotten out in almost any direction.

Ed. S. Little testified that he saw the defendant in St. Anthony after he was arrested; saw him at the county barn in St. Anthony; he called me down and said he wanted to have a talk with me; said he would like to fix this matter up and didn’t want any trouble over it, and I said the horse didn’t belong to mo, it belonged to my father, and he would have to fix it up with him, and he said Ferry had inquired for the horse, and it looked like he had told Ferry a damned lie about the horse because he didn’t notice the brand on him, the three bars on the shoulder, that is Seymour didn’t notice the brand.” On cross-examination the witness said this conversation took place immediately after the defendant’s arrest. On redirect examination the witness said: “I am referring to the little brown horse, branded three bars on the left shoulder and a very dim, lazy JH on the left thigh, it being the horse in question in this case.”

The foregoing constitutes all the evidence on the part of the state, with the possible exception of some minor and immaterial matters. After the state rested, the defendant, Emery Seymour, went on the stand and testified that he was acquainted with the horse in question and that the horse was branded JH on the left thigh and three bars on the left shoulder, and that he had known him for six or seven years; that his brother owned the horse when he first knew him and traded him to Arch. Kim-ball. Continuing he says: “I had the horse in my possession about the 16th or 16th of July, 1903; I received an order for the horse from Bob Birch to get him at the Seymour ranch, three miles north of Driggs, Teton Basin; Birch was riding for me at the time, and on that particular day he was herding horses that he had gathered.” The witness then testified that after receiving the order he had started to St. Anthony with some horses, and after crossing the Teton river, he came across this particular horse for which he had received the order, and that he threw him in the bunch and took him on to St. Anthony; that he found him about three miles from George Little’s place and across the Teton river from the Little place; that he was with other horses; that they corraled the horses and took this particular horse out of the bunch; that he kept the horse up for sometime after taking him to St. Anthony and used him as a hack horse to ride around town and drive up the cattle, and later turned him in the pasture near town, along one side of which ran the public highway. Continuing he says: “I rode him around town, what riding I had to do around town; drove cows to pasture, rode him on the 4th of July, and kept him to drive the cows to the pasture with; kept him up for a saddle horse. Birch worked for me perhaps six weeks. Birch trimmed his tail and cut his foretop one day while I was away. I had him shod. The streets are very hard here. He had been running out and was a litle sore-footed; I didn’t think Kimball would want the horses ridden without'it.” Here the witness produced the order ■which he had received through Birch from Kimball, and the same was identified and marked defendant’s exhibit “1,” and is as follows:

“Victor, June 27, 1903.

“Trapper, Dear Sir: Will yon git up the little brown horse fore me and take care of it, the one branded H on thi. I think he is running down around the boys somewhere.

“Your friend,

“ARCHIE R. KIMBALL/*

Speaking of this order the witness said: “This is the order Birch gave me from Kimball to get the horse. It is the same order and I recognize it as such; recognize the handwriting; it is Arch. Kimball’s handwriting; the same Arch. Kimball that formerly owned the horse, and to whom my brother traded it; I didn’t know of Kimball ever having sold or traded the horse. I am usually known by the name of Trapper. In accordance with this order I took the horse into my possession to hold for Kimball. I had a conversation with the sheriff, Samuel Har-rop, in St. Anthony on the 4th of July in regard to this horse; it took place on the ball grounds right close to the back stop. There was probably four or five hundred people around there. He spoke about the horse being a very pretty little horse, and spoke about buying him and asked me if I would sell him, and I told him that I had no right to sell the horse, that it° didn’t belong to me. I don’t remember anything being said about the brand in that conversation; if there was I didn’t understand', it.” The defendant further testified that he supposed the. horse belonged to Kimball and that he had taken him up on Kimball’s order and that he had written to Kimball’s brother and told him the first time he saw him to tell him that he had taken up the horse. Says that he remembers the conversation with Little in which he asked him about the horse, but that he had never noticed any brand on this horse, except the lazy JH, and that his recollection is that Little asked about a little black horse; that he, the defendant, owned several hundred head of horses, and believing that this horse belonged to Kim-ball he never thought of Little referring to this animal He then refers to some of the conversations about which the wit» nesses for the state had' testified, none of which seem to contain any material facts. He further testifies that he never saw Kimball after receiving the order for the horse until the day he was arrested when Kimball came to St. Anthony, and defendant saw him about the time he was arrested.

Archie K. Kimhall was next called and testified, on the part of defendant, that he resided at Victor, Bingham county, and had lived there nine years;, was a farmer and engaged in the cattle business, and that he was at one time the owner of the horse which had been taken from the defendant, and that he had purchased the horse from Ed. Seymour, a brother of the defendant, in the fall of 1896, and some two years afterward' sold him to one Harkness; that he had received a letter from his brother in law, Jack Edmiston, requesting him to take up this particular horse, stating that he, Edmiston, was the owner of the horse, and that the horse had gotten away from him somewhere in the Teton Basin; and that after receiving this letter from Edmiston he was riding one day on the range looking for horses and passed Seymour’s place, and stopped and inquired for Seymour, and found that he was not at home, but met Birch at the place, who was then working for Seymour, and he went into the house and wrote the order, defendant’s exhibit “1,” -and left it with Birch and requested him to deliver it to Seymour when he returned home; that Seymour was frequently called -“Trapper,” and that that was the reason why he addressed him as he did. Kimball identified the handwriting of defendant’s exhibit “1,” and testified to writing the order and that he didn’t see Seymour from that time until the day of his arrest, and had no communication with him in the meantime. The letter from Edmiston to Kimball was identified by the witness, marked defendant’s exhibit “2,” and introduced in evidence, and is as follows:

“Wilson, Wyo., June 3d, 1903.

“Dear Brother Arch: Will you git that little brown horse that you oned fore me. I brot it down to the north end of the Basin, and he got away from me as soon as I got home with him. From your brother,

“JACK EDMISTON.”

Witness testified that the exhibit was received by him through the mail, and was in the same condition that it was in when he received it.

R. A. Birch, the next witness for the defendant, testified to being at Seymour’s place in June, 1903, at work for Seymour, when Kimball came to the place and had a talk with him about Seymour’s whereabouts and inquired concerning this particular horse, and wanted Seymour to take him up if he found him, and finally went into the house and wrote the order, defendant’s exhibit "1,” which he left with Birch to be given to Seymour, and that he delivered the order to the defendant when he returned home. That thereafter, and in the latter part of June, the witness and defendant were riding in the Teton Basin and found this horse and took him up and brought him to St. Anthony with their other horses; that he was kept in the town of St. Anthony for some time, and then in the pasture close by and that they rode him and used him about town, and that Seymour never claimed to own the horse and had all the time represented that he belonged to Kimball. He also said that he roached the horse’s foretop and clipped his tail as he was in the habit of doing with other horses.

William Jerrard, a farmer living near Chester, in Fremont county, testified to being present in St. Anthony on the day of defendant’s arrest and hearing the conversation between Ferry Little and the defendant, and that Little asked the defendant if he had seen a little black horse running with a brown-eared horse on the range, and that the defendant told him he had not, and then related a general conversation which took place between the parties concerning the horse which Little was inquiring about.

Charles Coxsen, a liveryman at St. Anthony, testified that he had seen the defendant with this horse several times about town, and that he had examined the horse and talked to the defendant about buying the horse from him; that the defendant declined to sell him and stated to him that he was not the owner of the horse, and had no right to sell him, but that he belonged to Kimball.

K. A. Osborn, a rancher, residing at St. Anthony, testified to seeing Seymour with the horse several times and seeing him riding it, and to having tried to buy the horse from Seymour, and that the defendant declined to do so, and stated that the horse did not belong to him, but belonged to Kimball.

Alonzo Daw, a rancher living near St. Anthony, testified to substantially the same as Coxsen and Osborn, that the defendant had stated to him the horse didn’t.belong to him, but belonged to.Arch. Kimball.

The foregoing constitutes the material facts.produced by the defendant in his defense. The state thereupon produced one E. D. Jones as a witness on rebuttal, the substance of whose testimony was that he was acquainted with John Edmiston, and that he had seen him write his name; that he had a bill of sale for an animal which Edmiston had sold to the Victor Mercantile Company on July 7, 1903. After identifying the signature as being that of Edmiston, the state offered the document, being plaintiff’s exhibit “A,” in evidence as an exemplar, for the purpose of enabling the jury to compare the signature of Edmiston as contained on defendant’s exhibit “2” with Ed-miston’s signature as contained on this exemplar, plaintiff’s exhibit “A.” The defendant objected to the introduction of this exhibit, and the objection was overruled by the court, and the exhibit was introduced and was admitted in evidence, and allowed to go to the jury for the purpose of comparison of handwriting.

It will be seen from the foregoing testimony as given by the witnesses that the only incriminating fact of any consequence produced by the state against the defendant was that the animal was found in his possession, and that it was the property of the prosecuting witness, Little, and not the property of the defendant. It will also be observed that the defendant never at any time is shown to have claimed the property as his own or to having any right to the property, other than under and by authority of this order received from Arch. Kimball. There is absolutely no conflict of evidence in this case upon any of the material issues. The defendant admits having possession of the property and that it was not his own. He shows that he took the property in good faith, or apparently so at least, and under and by authority of an order from one whom he supposed to be the owner of the property; that when approached by persons who wanted to buy the horse he told them that he was not the owner of the horse and had no right to sell him, and that the horse belonged to Kimball. A careful examination of this record convinces us that the defendant must have been convicted upon the strength of plaintiffs exhibit “A,” and on the theory that the signature to this exhibit is not the same as the signature to defendant’s exhibit “2,” which Kimball claims to have received through the mail from Edmiston. The two signatures may or may not have been written by the same person, but whether they were or not, that fact cannot be material in establishing the guilt of the defendant. That would have become a proper subject of inquiry had they been trying Kimball for the larceny of this animal and he had produced the letter, defendant’s exhibit “2,” as a justification for the taking, but upon this trial of Seymour, such evidence was immaterial, unless the state could show defendant’s knowledge ■of the existence and fictitious character of the letter.

In this court some importance has been attached to the fact that Kimball at one place in Ms testimony said he received the letter, defendant’s exhibit “2” about the 3d or 4th of July, which was after the date of defendant’s taking the horse. The letter bears date "June 3d,” and at another place in the witness’ testimony he states that he received the letter soon after it was written. There is no evidence as to when it was written, except the date it bears. Again, it appears that the witness wrote the order, defendant’s exhibit "1,” after receiving the letter of June 3d, and it is undisputed that the order was delivered in June. It is therefore clear to my mind that the matter of this date is a mistake, either in making up the record or in the witness giving the name of the month. At any rate, it does not appear from the record that any importance was placed on this date in the trial court, as the witness’ attention does not appear to have been called to tMs fact by cross-examination or otherwise. It could make no difference, however, to the defendant whether Kimball had received instructions from anyone to take np this horse or not, if he represented to the defendant that he had a right to the possession of the animal and instructed and ordered the defendant to take him up, and the defendant did so in good faith and never assumed to own the horse himself. These facts were sufficient to establish a want of criminal intent on the part of the defendant in the taking, and would therefore make his acts fall short of larceny. The defendant’s explanation of his possession was reasonable and fair, and amply corroborated and uneontradicted in every respect, and should not have been disregarded. The undisputed evidence in this case is not only entirely consistent with defendant’s innocence, but inconsistent with his guilt, and if the settled rules of law uniformly recognized in the trial of criminal eases are to be applied in this case, it becomes our duty to so declare and grant the defendant a new trial. In State v. Nesbit, 4 Idaho, 548, 43 Pac. 69, this court, speaking through Mr. Justice Sullivan, said: "Conceding that there is circumstantial evidence against defendant tending to establish his guilt, those circumstances can be and are as reasonably explained on other hypotheses than that of defendant’s guilt or as perfectly consistent with defendant’s innocence, and far that reason a new trial should have been granted.” To the same effect, see State v. Mason, 4 Idaho, 543, 43 Pac. 63; State v. Crump, 5 Idaho, 166, 47 Pac. 814; State v. Seymour, 7 Idaho, 257, 61 Pac. 1033; State v. Marquardsen, 7 Idaho, 352, 62 Pac. 1034; State v. Seymour, 7 Idaho, 548, 63 Pac. 1036.

There is only one other assignment of error which requires our consideration, and that is as to the admissibility of plaintiffs exhibit “A,” which was admitted in evidence for the purpose of comparison of handwriting. On this question counsel for the respective parties have furnished us exhaustive briefs containing a great array of authorities. The same question has been considered by this court once before and was there resolved against the contention now made by the state. In Bane v. Gwinn, 7 Idaho, 439, 63 Pac. 634, this court said: "In this state, in an action involving the genuineness of a signature, only such papers as are admitted in evidence in the ease for other purposes and such as are admitted to be genuine should. except in very exceptional cases, be admitted for the purpose of comparison.” It can at once be seen that this case must either be reversed on account of the error committed in the admission of the state’s exhibit “A,” or the case of Bane v. Gwinn mnst be overruled.

After an examination of the various authorities on this subject we are not inclined to depart in any material respect from, the rule as announced in Bane v. Gwinn. It seems to us that the correct rule which should prevail in this state where we have no statute covering the admission of such evidence, is stated by Mr. Greenleaf at section 581, volume. 1 of his work on Evidence, fifteenth edition, where he says: “But, with respect to the admission of papers irrelevant to the record, for the sole purpose of creating a standard of comparison of handwriting, the American decisions are far from being uniform. If it were possible to extract from the conflicting judgments a rule, which would find support from the majority of them, perhaps it would be found not to extend beyond this: that such papers can be offered in evidence to the jury only when no collateral issue can be raised concerning them, which is only where the papers are either conceded to be genuine or are such as the other party is estopped to deny, or are papers belonging to the witness, who was himself previously acquainted with the party’s handwriting, and who exhibits them in confirmation and explanation of his own testimony.” To the same effect see 15 Am. & Eng. Ency. of Law, 2d ed., 268, notes and authorities cited.

We therefore conclude that the trial court committed error in the admission of plaintiff’s exhibit “A.” It should be further observed in this connection that the genuineness of the signature of this witness was not admitted by the defendant, and indeed it does not appear that either he or any of his witnesses were familiar with the handwriting of the man Edmiston, and he was therefore not in a position to know anything as to the genuineness of the signature, and as we have before observed, it was a matter entirely immaterial to the issues in the case and so foreign and collateral to the real issue that it should have been excluded for that reason alone.

The judgment will be reversed and a new trial granted.