State v. Wolff

RvlanDj J., delivered the opinion of the court. This ilia's an indictment against the defendant, Christopher Wolff, and three others. The present defendant was tried and found guilty, and sentenced,to the State Prison. He moved for a new trial, which being overruled, he brings the cáse to this court by appeal. The errors assigned, mainly question the judgment of the Criminal court, in giving instructions, and in refusing to give instructions; in admitting improper testimony; in excluding, as incompetent, a co-defendant as a witness for the defendant, and in refusing to grant a new trial. I will set out the various instructions offered in this case, as well those, refused as those given, and give my opinion on them. There were two counts in the indictment, one for stealing and the other for receiving stolen property. ' The property charged to have been'stolen, was a quantity of oats in the bundles, and a quantity of window glass. The property charged [172] to have been received, as stolen, was of the same kind as that mention" ed in the first count, oats and glass. There was testimony tending to show, that the property stolen was traced to a house occupied by one Pennel, a co-defendant indicted with the present defendant. The property, that is, the oats were found the morning after they were stolen, in the yard at Pennel’s house; traced there by tbe loose straw that had fallen, in the act of being carried along the road, as well as by the impression, or track of the wagon wheels. When the officers of the law were approaching-the house, Pennel and Wolff both ran. Wolff was caught, but the other escaped. When overtaken, Wolff said that Pennel told him to run. There was testimony tending to prove, that'Wolff was a person who hired himself to work; and that a short time, only, previous to this transaction, he-had gone to Pennel’s to live. ..The great body of the testimony, given in the case, relates to other articles than those mentioned in the indictment. Witness after witness is examined, proving that wagons, wagon wheels, wagon tongues, bee hives, honey, live geese, jack planes, straw cutters, buggy harness and various other articles, were found, at the house where Pennel and the defendant lived. These were taken to the calaboose; to which place the owners came, time after time, and claimed and carried away their property. The defendant objected to the admission of this evidence, but .it was admitted and he excepted. The court, at length, instructed the jury, to disregard all the evidence in relation to any other property than that mentioned' in the indictment. The defendant’s counsel contends, and we think, very properly too, that this instruction has not and cannot do away with the effect that such evidence had on the jurors minds. Had the State proven, that the property, recently stolen, was found in the possession of the defendant, then there might be some pietext for showing guilty knowledge in the defendant, that the property was stolen, to prove, that in his possession were various other articles of stolen property. But the proof here is, that the house, where these things were found, was in possession of Pennel; that defendant was living with him, in all probability as a work hand, and had been living with him but a short time. It will not do to admit illegal evidence or irrelevant testimony against the accused, in spite of his objections, and after such evidence has had the effect to impress the jurors unfavorably against the accused, to attempt to wipe out the injury by an instruction, calling on the jury to [173] disregard it. It lias been said that “evil, in the mind of man, may come and go, so unapproved as to leave no stain behind,” but an impression upon a juror’s mind, made by illegal evidence, may have a powerful effect, in forcing that mind to an improper conclusion. The corpus delicti must be first proved, before such evidence can be admitted — must be first brought home to the defendant. As in an indictment for passing -counterfeit money, after it has been proved, that the defendant passed the bank note as charged, and that the bank noté was counterfeit, then the prosecution may prove various other acts of passing counterfeit money, in order to ¿how the defendant’s knowledge of the fact, that it was counterfeit, The court gave the following, on its own motion : L The jury will disregard all testimony relating to ether property than that set forth in the said indictment, which was net proven to be stolen property. 2. If the jury believe, from the evidence, that the defendants, or either of them, did steal, take and carry away any of the property cha'rged as the property of Casper H. Strantman, of the value of ten dollars ■or upwards, and that they, or either of them, did so steal for the purpose of converting the same to their own use, you ought to find the defendant-guilty of grand larceny, and assess the punishment to imprisonment in the Penitentiary for a term not less than two nor more than five years. Possession of stolen property, not long after the theft, raises the legal presumption of guilt in the party having such possession, and it is for,him to account for such possession, to the reasonable satisfaction of the. jury. 3. If the jury believes from'the evidence, that Christopher Wolff did live at the house leased by Pennel, and did at any time, either by himself or with Pennel, have possession of the property charged, and if the jury believe that said property was stolen property, the burden is thrown upon the defendant, Christopher Wolff, to account for such possession, to the resonable satisfaction of the jury. 4. If the jury entertain a reasonable doubt as to the guilt of either of the defendants, you ought to acquit such defendants. 5. If the jury have no reasonable doubt, as to the guilt of the defendants, or either of them, as charged in the first count, but cannot agree as to the measure of punishment, you can find the defendants or either -of them guilty, without assessing the punishment. The following instructions were asked on the part of the defendant, but were refused by the court: [174] L'The jury are instructed, that the State having elected the first count in the indictment, which charges the defendant with the felonious taking of the property mentioned, the jury will disregard all evidence of the stealing of any other property, except the property set forth in the indictment, to-wit, pats and glass. The jury cannot, therefore, convict, unless they believe from the evidence that the defendants, or either of them, did steal, take and carry away the property mentioned, from the possession of the owner of the same; and if the jury have a reasonable doubt, as to whatever the defendant, or either of them, did actually steal and carry away the property mentioned, they will acquit. 2. If the jury believe that Pennel hired or leased the house in question, and that Christopher lived with him, as a hired man, and that the property mentioned in .the indictment was in said house, or in the stable or shed attached thereto, these facts do not, of themselves, prove that such property was in the possession of the said Christopher, and he is not called on to account for such property being there. The first instruction of the defendant was properly refused, because the State had not, as appears by the record, made any election of the counts in the indictment, on which to rest the prosecution. The second instruction asked by the defendant, might well: have been given, and we think it ought to have been given. I have already commented on the first instruction given by the court. It was right to give it; it was all the court could do to cure the injury done, bat it did not then do away with the error. The instruction given as number two is wrong in the phraseology in which it was given. This instruction says to the jury, that if they believe that the defendants, or either of them, did steal any of the property as charged, that they must find the defendant guilty. We do not suppose that the court intended to charge the jury, that if they believe from the evidence one man guilty, they might convict another and a differed one. This is clearly wrong. The third instruction given.is also wrong. Possession of stolen property must be recent after the theft, in order to raise the presumption of guilt. Possession at “any time” will not raise the presumption. “JÍny time” may refer to a period too remote; it must be recent. We find no fault with the other instructions. The point raised by the rejection of the co-defendant as a competent witness for the defendant, will be noticed in the case of Roberts vs. The State, now before us, and to he decided at this term. Upon the whole case then, we think the court erred in admitting the testimony of the witness about other property than that charged in the [175] indictment; that the defendant’s second instruction ought to have been given; that the third instruction given ought to have been refused, and that the fourth instruction is wrong in the words “possession at any time.n For these errors, the judgment below is reversed, and the c.ase remanded for further trial; the other Judges-concur fiug-.