Argued May 6, 1881
Decided May 31, 1881
E.W. Gardner for plaintiff in error. Frank Rice, district attorney, for defendant in error.
The prisoner was tried for burglary and larceny, claimed by the prosecution to have been committed in complicity with one Bush and Adelia, his wife. The offense charged was the breaking and entering the barn of Murray Witter, and stealing therefrom his horse and buggy. The prosecution depended wholly upon the testimony of these alleged accomplices, mainly that of Bush, for the conviction of the prisoner. The law does not absolutely prohibit a conviction upon such testimony, but every such case should be closely scrutinized, and the legal rights of the accused carefully guarded. We have examined the numerous exceptions taken upon the trial, and have come to the conclusion that some of them are well taken and entitle the prisoner to a new trial. It is not necessary to go further into the merits of the appeal than to specify one or two exceptions which we think should be sustained.
The prisoner was examined on his own behalf and contradicted positively the statements of the witness Bush, which charged him with complicity in the crime. The question before the jury really was the relative credibility of Bush, who admitted his own guilt, and that of the prisoner, who claimed to be innocent. The counsel for the prosecution called witnesses to impeach the general reputation of the prisoner and show that he was not worthy of credit. The prisoner called witnesses to prove that his character was good and that he was worthy of belief. Charles Babbitt, one of these witnesses, testified that he had for twelve years been a neighbor of the prisoner and been acquainted with him and the people in his neighborhood, and had the means of becoming acquainted with his general character in that neighborhood, and that from that character he would believe him under oath. On cross-examination by the counsel for the prosecution, the witness was asked whether from the way that people talked about the accused there his character was good or bad, judging from what was said of him, to which question the witness answered that it preponderated on the side of good. The witness was then asked by the prosecuting counsel whether he meant to say that in his opinion there was a question about the character of the accused. The witness answered this question in the negative. He was then asked whether there was such a question according to what people said about him, and he answered this in the affirmative.
This cross-examination clearly disclosed that although the opinion of the witness as to the credibility of the prisoner was not affected by what was said about him in the neighborhood, yet that there were reports unfavorable to his character in circulation there, and the defense was clearly entitled to disclose what these reports were, so that the jury might judge in what respect they affected his character, and whether they were of such a nature as to impair his credibility as a witness. The counsel for the defense, therefore, asked whether they were in respect to his drinking and trading horses. This question was, under a general objection, excluded by the court and an exception taken.
We think this ruling was erroneous, and that it renders a new trial necessary. We also think that error was committed in excluding the evidence of the witness Daniel Gates, as to the declaration of Bush, that while on his way to Witter's on the night of the burglary in question, he stopped at Harmon's for the purpose of stealing a horse there, and was only deterred by the bad appearance of the horse.
If the fact that Bush did stop at Harmon's as claimed, or his declaration that he did so, conflicted with Bush's testimony that he was at that very time proceeding to Witter's in pursuance of an arrangement with the prisoner for stealing Witter's horse, these were not collateral matters, but bore on the main issue, and Bush having denied the fact, and having denied making the declaration, it was competent to contradict him by the testimony of Gates. It seems to us that there was a conflict in the statements; Bush testified that the arrangement was that he was to proceed to the school-house, and there wait for the prisoner to bring Witter's horse, and that when the prisoner passed him on the road and told him to hurry up, Bush replied, "that he would be there as soon as the prisoner." Bush's declaration that at the very time he was contemplating stealing another horse at a different place, and actually attempted that theft, but that his reason for not accomplishing it was only the poor appearance of the horse, certainly conflicts in some degree with this testimony.
Without reference to the other points raised in this case, we think those which have been adverted to require that the judgment should be reversed and a new trial ordered.
All concur, except FOLGER, Ch. J., absent.