Bruchman v. United States

DOAN, J. — The appellant in this ease, R. M. Bruchman, was tried in the district court of the fourth judicial district on the twenty-first day of June, 1906, on the charge of selling whisky to Indians in Navajo county within the said fourth judicial district, and from the judgment and sentence of the court, pronounced upon.a verdict of guilty by the jury, he has appealed to this court. The first error assigned is the ruling of the court on the competency of an Indian named To-hai-be-ga, as a witness for the prosecution. "We have examined the testimony of this witness on his voir dire and are satisfied that he was competent to testify. In this connection it is well to state that the examination of the witness was made in the presence of the jury, who could observe the degree of intelligence shown by him, and take it into consideration in determining the weight to be given to his testimony. The second error assigned is based upon the admission of certain testimony from this same witness, and is untenable, for the reason that this testimony was given on redirect examination, in explanation of the testimony relative to the same facts, that had been first elicited from the witness by the [182] counsel for the defendant in cross-examination, and, while this testimony might have been subject to objection if originally introduced by the prosecution, it was fully competent in explanation of the testimony that had been put in the record by the counsel for the defense. The third error assigned is based upon the cross-examination of the defendant, who was asked by the United States attorney : ‘Q. How much alcohol did you have there?” “Did you ever keep any alcohol there?” “Did you have a barrel of alcohol?” Which questions were permitted by the court to be answered, over objections by defendant’s counsel. The circumstances of the ease, and the character of the evidence theretofore given, rendered this testimony perfectly competent. The defendant was being tried on a charge of selling whisky to Indians, the scene of the alleged transaction was a country store or trading-post on the Indian Reservation, and distant twelve miles from the railroad, the defendant had testified in regard to the whisky, beer, and intoxicating liquors that he had, at the time of and prior to the alleged offense, kept at his little store or trading-post, and, after having so testified, he was interrogated on cross-examination in regard to what’alcohol, if any, he kept about the premises. We find no error in the ruling of the court in this instance. The fourth error assigned is based upon the following testimony of a witness named Maxwell in regard to one Calletano Ybarra, who had testified in behalf of the defendant that he was at the store between 9 and 10 o’clock on the morning of the day in question, and had seen and heard some transaction there between the defendant and a certain Indian; and, in rebuttal, Maxwell was asked if he had seen Ybarra at Bruchman’s on that day. “Yes, sir. Q. Do you know what time he arrived? A.'He drove in there between 2 and 3 o’clock in the afternoon. Q. Did you see him drive in? A. I saw him drive in with a woman. Q. Which way was he coming from? A. Prom toward Winslow. Q. Was he there in the forenoon at all ? A. I did not see him; if he had been there I would have seen him. Q. You were around there? A. I was around there.” The statement, “if he had been there I would have seen him,” was objected to, on the ground that it was a conclusion of fact to which a witness could not testify, and a motion was made to exclude it on that ground, and the court denied the motion. The competency of such testimony depends upon circumstances.. This was very aptly [183] illustrated by the learned judge of the lower court in this case. He said: “If one said, ‘John Jones was not in New York, because, if he had been there, I would have seen him,’ the answer would be inadmissible; but if he had said, ‘He was not in a certain room in New York because I did not see him; I was there, and, if he had been there, I would have seen him’ — that would be admissible.” In this instance .there is nothing in the record to indicate that the statement of the witness Maxwell was not perfectly competent. The store or trading-post was described as a little two-room building. The witness Maxwell had testified that he knew Ybarra personally. There were not many persons present other than Indians, and, unless something to the contrary appears, it would seem that he could therefore testify correctly and definitely of his own knowledge as to Ybarra’s presence or absence at that time. No circumstances of the occasion, or condition in regard to the store or premises adjacent thereto, appears in evidence, tending to show that it was possible for the witness Ybarra to have been present at any time after Maxwell’s arrival that day without Maxwell seeing him. The last assignment of error is based upon the alleged misconduct of the United States attorney, who, in his argument to the jury, said: “This alcohol was there and used as a mixture for the purpose of selling to these Indians”; and upon the counsel for the defendant objecting to the statement, the United States attorney replied: “I am arguing what he did do. I am drawing the inference from what was there and from what he did do. He mixed it up in a decoction and sold it to the Indians.” Whereupon, at' the request of the counsel for the defendant, the court instructed the jury that the sale of alcohol would not sustain the charge on which the defendant was then being tried. There does not appear to be anything in this statement to constitute reversible error, or entitle the defendant to a new trial. The statement of the counsel by way of argument as to what might have been done, was entitled to go to the jury, as any other argument counsel might present, based upon or inferred from the facts placed in evidence. The instruction of the court to the jury, that the defendant being charged with selling whisky, the sale of alcohol, if they should believe such had been made, would constitute no offense under the charge on which the defendant was then being tried, and should therefore not be taken into consideration by them, [184] would protect the defendant from the jury improperly considering this statement as anything other than argument. No reversible error appearing in the record, the judgment-of the lower court is affirmed. KENT, C. J., and CAMPBELL and NAVE, JJ., concur.