State v. Thurtell

The opinion of the court was delivered by Horton, C-. J.: The appellant was tried at the June term, 1882, of the district court of J'ohnson county, on the charge of grand larceny, found guilty, and sentenced to the penitentiary for the term of four years. From that conviction he appeals to this court; The evidence against the appellant was circumstantial. Upon the trial, one William Holton testified on the part of the prosecution that on a certain occasion he saw the appellant at Louisburgh, in this state, with a man named Starr; that he had no knowledge of appellant being connected with horse thieves, and had no conversation with him or in his presence on that subject, and did not know the object of appellant’s visit to Louisburgh. He further testified over appellant’s objection, that he (witness) and Starr were both professional horse thieves; that the gang to which they belonged had a secret oath, and that the appellant was reported to belong to this gang of horse thieves. The admission of the evidence “ that appellant was reported to belong to a gang of horse thieves,” is complained of, and we think very properly. It is not competent for the prosecution [149] to initiate the inquiry as to the general character of the prisoner, and it is only after the prisoner has elected to put his character in evidence by calling witnesses and adducing evidence in its support, that the prosecution is permitted to follow and disapprove the evidence so offered. Further, the evidence objected to was mere hearsay, and of a character highly prejudicial, under the circumstances of the case, to the appellant. (3 Greenl. Ev., § 25; People v. Fair, 43 Cal. 137; Cheney v. State, 7 Ohio, 222.) The judgment of the district court will be /reversed,/and the cause remanded for a new trial; the appellant will be re-, turned from the penitentiary, and delivered over to the jailer of Johnson county, to abide the order of the district court of that county. All the Justices concurring.