State v. Wolfley

89 P. 1046, 75 Kan. 406, 1907 Kan. LEXIS 74

• Court: Supreme Court of Kansas
• Decided: March 9, 1907
• Docket: No. 15,101
• Status: Published

Opinions

The opinion of the court was delivered by

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 might be supposed from the text quoted. The case of Peoples v. Devault, 11 Heisk. (Tenn.) 431, is of the former class; among the latter are Stewart v. Hunter, 16 Ore. 62, 16 Pac. 876, 8 Am. St. Rep. 267; People v. Bolanger, 71 Cal. 17, 11 Pac. 799; State v. Cardelli, 19 Nev. 319, 10 Pac. 433; Dreyer v. The State, 11 Tex. App. 631; Hurst v. Territory, 16 Okla. 600, 86 Pac. 280. (See, also, Plummer v. Newdigate, 63 Ky. 1, 87 Am. Dec. 479.)

Referring to what Professor Wigmore characterizes as the best opinion on the subject, it was said for the majority of the court, in Queen v. Forsythe, 4 Ter. L. R. (Eng.) 398:

“We are of opinion that the fact of the prosecutor’s brand being upon the hide was a means of identifying it as his property. The practice of branding has become the recognized mode of marking animals so that the owner may recognize them, and so widely used is it that it has become almost the only means employed for that purpose. Where a person has but a few animals he may be able from frequently seeing them to become well enough acquainted with their appearance to recognize them without, perhaps, being, able to point out the various peculiarities by which he knows them. But when the herd is a large one and no one may have had sufficient opportunities to become acquainted with the many little peculiarities which may distinguish the members of that herd from all other animals, then it becomes necessary that some practically indelible mark should be placed on them, and branding has been found to be the best mark for that purpose. It is in every cattle country a well-recognized mode of identification, and to say that it is not a reasonable means is to say that all cattle dealers are wrong in recognizing it as such. It is, of course, not an infallible mark. It may have been put on by mistake, or by fraud, or the animal, though the property of the owner of the brand at one time, may subsequently have been parted with. But these remarks apply equally to whatever marks may be relied upon as proof of identification.” (Page 402.)

This argument seems especially forceful when contrasted with that advanced in a dissenting opinion in support of the contrary view, in the course of which this language was used:

“Suppose a man lost a coat and a person was found in possession of it, and the owner of the coat swore that he knew the coat was his because a button was sewed on it bearing his initials. When asked if he put the button there himself, he would answer ‘No’; whether he knew the coat otherwise, he would say ‘No.’ I don’t think any judge would contend that this evidence would be sufficient to convict of theft. The evidence no doubt would prove that the button was his, but it would 'not be sufficient to prove property in the coat. It is some proof that the coat bearing that button belongs' to him, but not prima facie proof that the coat belongs to him; I mean not sufficient evidence to obligé the incriminated individual to adduce evidence to contradict that statement or explain it. I hold, therefore, that the brand and ear-marks on an animal are not prima facie evidence of ownership, so as to find a man guilty of theft, unless there is corroborative evidence in support.” (Page 406.)

Where brands have been rejected as evidence of ownership it has usually been because of statutes which forbid their admission for that purpose unless recorded. In these cases it is often said that they are competent only as evidence of identity, apparently meaning that they may be received in the same way as any other flesh-marks — to distinguish the particular animals upon which they are found. (See as to this use of the expression Sapp v. State [Tex. Cr. Rep.], 77 S. W. 456, and State v. Hanna, 35 Ore. 195, 57 Pac. 629.) A statute which merely makes recorded brands prima facie evidence of ownership was held in Hurst v. Territory, 16 Okla. 600, 86 Pac. 280, not to render unrecorded brands incompetent on that issue, the court saying:

“It is a matter of common knowledge thht in many instances, and particularly with persons owning large herds of cattle, the only method- of identification and the only proof of ownership that can be produced or obtained is the brand or marks, and if it should be held, as contended for by plaintiff in error, that this statute makes evidence of ownership by brand incompetent, except where the brand is recorded, then in such cases it would be absolutely impossible to prove ownership.” (Page 604.)

In this state, while there are various statutes recognizing the use of cattle brands, there is none forbidding or regulating their use as evidence of ownership. In the absence of such a statute there was no error in refusing the instruction asked.

In the course of an instruction with regard to the claim of the defendant that he owned the cattle he was chargéd with stealing the court said: “It is a question for the jury to determine from all the facts and circumstances in the case whether or not such defense is probably true.” It is contended that this language was seriously prejudicial to the defendant because it suggested a shifting to him of the burden of proof and invited a verdict based upon a mere probability. Any tendency it may have had in that' direction, however, was .counteracted by the concluding words of the same instruction:

“You are instructed that a defendant is never compelled to prove his innocence of a crime charged against him. It always devolves upon the state to prove his guilt beyond a reasonable doubt, and if after the entire consideration of all the evidence in this case, including any explanation the defendant has offered to the fact of possession of said cattle, and all defenses he has made to the charge against him, there exists a reasonable doubt in your mind of his guilt of the crime charged against him in the information, you must acquit him.”

A final complaint is based upon this statement, incorporated in an instruction defining the term “reasonable doubt”:

“A reasonable doubt means a doubt which has some good reason for it arising out of the evidence or lack of evidence in the case; such a doubt as you are able to find in the evidence or lack of evidence a reason for.”

In The State v. Patton, 66 Kan. 486, 71 Pac. 840, the giving of an instruction that a reasonable doubt was one for which the jury could give reason was held not to require a reversal. The present case is well on the safe side of the debatable ground there considered. Whatever objections there may be to a juror’s being told that in order to regard a doubt as reasonable he must be able to give — that it to state — a reason for it, no harm can result from advising him that no doubt is reasonable unless a reason for it exists, and that is substantially the effect of the instruction under consideration.

The judgment is affirmed.

SYLLABUS BY THE COURT. 1. Criminal Law — -Instructions—Circumstantial Evidence. A conviction upon a criminal charge will not be reversed because of an omission of the trial' court to instruct the jury that the facts relied upon to justify a conviction upon circumstantial evidence must be consistent with each other, where' no separate’ request was made with regard to that proposition, and where the court gave an instruction regarding the effect of circumstantial evidence which was otherwise sufficient. 2. -Presumption of Innocence — Reasonable Doubt — Instruction. An instruction that “the law presumes and you [the jury] must presume him [the defendant] to be innocent of the crime with which he is charged . . . until he is proved guilty beyond a reasonable doubt by competent evidence” sufficiently indicates that the presumption of innocence is an affirmative force, equivalent, to. so much evidence in his behalf, at least where no request is made for a more specific statement of the proposition except in connection with other matters.