Argeros v. State

Blume, Justice. The appellant Peter Argeros was charged with the larceny of 25 head of sheep, the property of the Chicago, Burlington & Quincy Railroad Company, a corporation, who held said property as bailee. He was convicted of the charge. From the judgment entered thereon he brings this case here by direct appeal. 1. To establish the corpus delicti the state introduced as a witness one Charles L. Brome, the owner of the sheep, who shipped them from Worland to Denver, via the Burlington railroad, billed to Seigle & Campion, commission merchants. On direct examination he testified that 25 lambs were missing out of the shipment at Denver. On cross-examination it developed that he had no personal knowledge of that fact, and that the only information he had on the subject was derived from the returns of sales of the shipment made by Seigle & Campion, which returns, as the later testimony showed, were, together with a check, sent to a bank at Worland, Wyoming. Defendant moved that the testimony of the witness as to the shortage be stricken out. This motion was overruled, an exception was taken, and this action of the court is assigned as error here. No witness was produced who saw the sheep at Denver or knew [284] anything about the shortage. Not even the original books of Seigle and Campion, showing the sale of the sheep, or the transaction in connection therewith, were introduced in evidence or attempted to be introduced. The testimony of the witness Brome was clearly hearsay. He knew nothing about the shortage; he did not know whether the facts contained in the account of sales were correct. It has been held that not even this account could be used as independent and primary evidence to prove the facts therein recited. (Baird v. Denver & R. G. R. Co., 49 Utah 58, 162 Pac. 79; Ft. Worth & R. G. R’y. Co. v. Couble, 41 Tex. Civ. App. 348, 91 S. W. 244; International & G. N. R. Co. v. Starts, 97 Tex. 167, 77 S. W. 1; Texas & P. R’y. Co. v. W. Scott & Co., (Tex. Civ. App.) 86 S. W. 1065.) In the case of Board v. Denver & R. G. R. Co., supra, the court said: “Plaintiff’s counsel defend the court’s ruling upon the theory that the account of sales in question was made in the due course of business, and that it is in the nature of a public document. The document clearly was not a public document. It was made in due course of business, let it be conceded, but the proper preliminary proof, for various reasons, was not made to let it in under that exception to the hearsay rule. Nor does the memorandum take the place of original entries in books of account, and of course it cannot be considered as a public document. No doubt the person who weighed the' sheep, or any person who saw them weighed and knew that the weights were correctly recorded at the time, could have used the account of sales to aid his testimony; but there was no such preliminary proof. The account of sales in question, standing alone, is not an exception to the hearsay rule, and cannot be used as indepéndent and primary evidence to prove the facts therein recited. ’ ’ It must be even clearer that the testimony of the witness Brome was hearsay, based as it was upon facts mentioned in the account of sales, when he knew nothing about these facts or the correctness of the account. Clearly we cannot establish a rule under which a fact, especially one of importance, [285] may be established by a witness who gains his knowledge thereof solely from a letteb or a statement received from a third party. Hence the testimony referred to, as well as similar testimony given by the same witness when he was recalled, should have been stricken upon motion, when the objection that it was hearsay testimony was raised. The subject is of particular importance because the witness Brome is the main witness in the case by which the shortage of sheep was attempted to be established. Whatever other testimony appears in the record tending to show that fact is, without attempting to pass upon the weight thereof, and without attempting to go into the details thereof, at least not of convincing character on the point in question. There was no direct testimony showing any shortage at Guernsey. There was evidence that the sheep in the goat pen of Krionderis, hauled there by the defendant, had a brand like that of the sheep of the witness Brome, but no attempt was made to show that the sheep of Brome alone had this brand, and it is not clear that the sheep in the goat pen might not have been acquired from a source other than that contended by the state. In order that the admission of incompetent evidence may be held to be harmless, the other evidence in the case on the same point must be clear- (4 C. J. 973, 977; 17 C. J. 319, 332,) which is not time in the case at bar. The jury were undoubtedly influenced by the testimony in question in determining as to whether an actual shortage in the number of sheep existed or not, and hence the ease must be reversed on account of the error pointed out. 2. In view of the further trial of the case we shall briefly touch upon the remaining points argued. Articles of incorporation of the Chicago, Burlington & Quincy Railway Company, certified to by the secretary of the state of Iowa, and recorded in Platte County, Wyoming, were introduced in evidence. We need not stop to consider whether the certification, in order to admit the document in evidence, was proper, or whether the articles of incorporation were those [286] of a company different from that mentioned in the information. The admission of the document could not in any event be held to be prejudicial. Without deciding as to whether or not the remaining evidence in the record is sufficient to show the Chicago, Burlington & Quincy Railroad Company to have been a corporation, as alleged in the information, all we need to say here is that it is only necessary to prove that the corporation was such de facto, and this may be proved by reputation. (Tollifson v. People, 49 Colo. 219, 112 Pac. 794; Reed v. State, 15 Ohio 217; Miller v. People, 21 Colo. 166, 21 Pac. 1025; Perry v. People, 13 Colo. 23, 87 Pac. 796; People v. Barric, 49 Cal. 342.) 3. The sheriff of Platte County was produced as a witness by the state and he was asked concerning complaints made to him by the officials of the railroad company, and he testified at length in regard thereto. Questions of this kind would, no doubt, at times be proper as preliminary, if followed up by testimony showing that pursuant to the complaint discovery was made of facts throwing light on the transaction. It would seem, however, that there was no such purpose in the case at bar. Here the testimony was elicited apparently for the sole purpose of showing that such complaint was actually made. In order that testimony may be admissible, it should tend to prove an issue in the case. The testimony in question had a tendency to show that the railroad company suspected that the crime had been committed in Platte County, and possibly, that the defendant was connected with it, but nothing more, and hence the testimony was wholly immaterial, and was incompetent to prove any issue. We do not, however, determine as to whether or not it was prejudicial to the defendant. 4. The witness Morgenaus testified that on the night of November 13, 1921, he saw the defendant take sheep to the goat pens of one Krionderis; that he saw these sheep in the pens soon after that date; that he worked for Krionderis in the spring and summer of 1921 and that no sheep were in the pens at that time. It is objected that the testimony as [287] to whether Krionderis had sheep in the spring and summer of 1921 was improperly admitted. "We think not. "While the time testified to was somewhat remote, that did not effect the competency of the testimony at the time it was offered, and if followed np, as it was in this case, that Krion-deris had no sheep immediately preceding November 13, ' 921, might have weight in the minds of the jury in determining the question of the guilt of the defendant. For the error herein pointed out, the judgment of the lower court is reversed and the case is remanded for a new trial. Reversed and Remanded. PotteR, Ch. J., and Kimball, J., concur.