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[Cite as Eads v. State, 17 Wyo. 490, ___, 101
P. 946, 950-951 (1909). NOTE: This decision concerns horse theft and
whether a witness's testimony can be impeached due to a prior conviction of
carrying concealed weapons. (Pp. 950-951) The court
observed, "to discredit the witness, [the offense] should at least tend to prove
moral turpitude or a lack of veracity. The crime of carrying concealed weapons
imputes neither ..." (Pp. 951)]
EADS v. STATE.
(Supreme Court of Wyoming. May 22, 1909.)
1. Criminal Law--Misconduct of
The misconduct of the prosecuting
attorney in asking accused on cross-examination a question, obviously improper,
for the purpose of prejudicing the jury, is not reviewable where no objection
was made to the question, and, without an objection and an exception to an
adverse ruling, the question cannot be considered, though it is sought to be
raised by motion for a new trial.
Law--Appeal--Misconduct of Prosecuting Attorney--Exceptions.
exception to the misconduct of the prosecuting attorney in the examination of
witnesses is not of itself, without timely objection, sufficient to require the
court on appeal to review such alleged misconduct.
3. Criminal Law--Appeal--Harmless
Error--Admission of Evidence.
The error in permitting the state to ask
accused on trial for horse theft as to whether he had wired to an attorney in a
sister state to ask him to attach the horse, so that it could not be returned to
Wyoming, was harmless, where he answered it in the negative.
On a trial for the theft
of a horse the state may show that accused attempted to keep the horse beyond
the jurisdiction of the court, and thereby embarrass the state in its
identification, as the jury may properly infer therefrom a consciousness of
Where, on a trial for
horse theft, the prosecution sought to show that accused had stolen a horse
which he had previously sold to a third person, and that the horse had been
found in a sister state, and accused claimed that that horse was not the horse
sold to the third person, and the evidence as to the identification of the horse
was conflicting, and it appeared that, after the horse had been shipped back to
Wyoming, it was examined by witnesses with a view to its identification and
viewed by the jury, it was proper to permit the state to show any attempt on the
part of accused to keep the horse from being inspected at the time of the trial
by witnesses who had previously known it.
Where, on a trial for
theft of a horse, the state sought to show an attempt by accused to prevent the
horse from being returned to the state after the larceny, a question asked
accused, as to whether his attorney had wired an attorney in a sister state to
have him attach the horse there so that it could not be returned to Wyoming, was
proper as relating to the time of sending such a telegram, if any was sent,
though accused had denied sending it, since, if accused knew that his attorney
had sent such a telegram, it was a matter of legitimate inquiry as a
circumstance bearing on the issue as to whether he had authorized the sending of
Accused taking the stand as
a witness may be impeached like any other witness.
8. Criminal Law--Best
Where the state, on cross-examination of accused on trial
for theft of a horse, sought to prove the contents of a telegram sent to an
attorney in a sister state, directing him to attach the horse there so that it
could not be returned to Wyoming, as an admission, or to lay the predicate for
impeachment, the state was not bound to produce the telegram, and, where the
answer contradicted the telegram, the state had the option of introducing the
telegram in evidence or of not pursuing the subject further.
The fact that accused on
trial for the theft of a horse was a party to an attempt to have any one send a
telegram to an attorney in a sister state, directing him to attach the horse
there, to prevent it from being returned to Wyoming, (p.947)was competent whether a telegram was sent or not.
10. Criminal Law--Best
In using the contents of a writing to lay the
foundation for the impeachment of a witness, the cross-examiner may accept an
affirmative answer as proof of the contents, as such affirmative answer amounts
to an admission of the witness which cannot be excluded on the ground that it is
parol proof of a written instrument.
Since it is the duty of an attorney
to see his client's witnesses and ascertain what they know about the
controversy, it is only when it is sought to show an actual fraudulent
conference between the attorney and a witness, or an attempt to corrupt or
influence a witness to color his testimony or to testify falsely, or to avoid
the service of process, that what occurs between an attorney and his client's
witnesses becomes material.
A question, on cross-examination of a witness for accused
on trial for the theft of a horse, as to whether he had talked to accused's
attorney about the description testified to, is not an attempt to show improper
conduct on the part of the attorney towards the witness, and an affirmative
answer does not permit evidence on redirect examination as to whether the
witness described the horse to the attorney, or whether the attorney described
the horse to the witness.
13. Witnesses--Impeachment--Misconduct of Witness.
be made as to specific instances of recent misconduct of a witness on
cross-examination within proper limits to affect his credibility.
14. Witnesses--Cross-Examination--Discretion of Trial
The right and limits of cross-examination of a witness as to
specific instances of misconduct to affect his credibility rest largely in the
discretion of the trial court.
15. Witnesses--Cross-Examination--Discretion of Trial Court.
party seeking to discredit a witness of the adverse party by proving on his
cross-examination acts of misconduct is limited to the fact of misconduct of the
witness, and proof of what the state or others did in the way of accusations or
by way of procuring the arrest of the witness for alleged misconduct is
The defense, to
impeach a witness for the state, asked him whether he had been arrested for
shooting a man in a bawdy house at a designated time. An objection to the
question was sustained. The witness was then asked whether he had been arrested
at the same time for carrying concealed weapons and had been convicted therefor.
An objection to the question was sustained. Accused then offered to prove on
cross-examination of the witness that he had been convicted for the offense of
carrying concealed weapons, growing out of the transaction of the shooting in a
bawdy house previously mentioned. Held, that the offer was insufficient,
and the court properly sustained an objection to it as immaterial, irrelevant,
It is lawful to carry an unconcealed weapon for a lawful
The crime of carrying concealed weapons imputes neither
moral turpitude nor lack of veracity in the perpetrator thereof, and proof of
the conviction of a witness of the crime is not admissible to affect the
credibility of the witness by proving moral turpitude or lack of veracity.
19. Criminal Law--Harmless
Error--Erroneous Exclusion of Evidence.
The error, if any, in
excluding proof that a witness for the state had been convicted of carrying
concealed weapons, is harmless, and the Supreme Court, under Rev. St. 1899, §
3744, providing that only those exceptions which show prejudice to the
substantial rights of a party shall be considered, cannot reverse a conviction
Error to District Court, Big Horn County; Carroll
H. Parmelee, Judge.
Charles W. Eads was convicted at larceny, and he brings error.
E. E. Enterline and Victor T. Johnson, for
plaintiff in error. W. E. Mullen, Atty. Gen., for the State.
SCOTT, J. The plaintiff in error, who was the
defendant below, and who will be referred to as the "defendant," was charged by
information in the district court of Big Horn county with having on the 31st day
of October, 1908, committed the crime of larceny of a horse of the value of
$100, the personal property of R. W. Hale. He was arraigned, pleaded not guilty,
tried, convicted, and brings the case here on error.
1. The defendant seeks to predicate error on the alleged misconduct
of H. S. Ridgely, an attorney at law who assisted the county and prosecuting
attorney in the trial of the case, in asking upon cross-examination of the
defendant, who testified in his own behalf, the following question, viz., "You
are the father of Kise Eads?" to which question the defendant made answer: "Yes,
I guess I am." This question was not germane to anything brought out on direct
examination, nor was it relevant to any issue in the case. It was not objected
to on the ground of irrelevancy, or at all, nor was the answer made the subject
of a motion to strike, but went to the jury unchallenged in any way. No attempt
(p.948)was made to disclose its prejudicial
character to the court until after verdict. Upon motion for a new trial in
support of which one of counsel for defendant made affidavit, in substance, as
follows: That he, the attorney for the defendant, was not informed as to the
character of Kise Eads when the question was propounded. That since the trial
affiant has learned that said Kise Eads had a very bad reputation for honesty
and integrity in the said county as to being law-abiding and has learned that he
was compelled to leave the county on account of warnings received that he would
be violently dealt with if he did not leave. That one of his associates had been
foully dealt with, and immediately thereafter the said Kise Ends received notice
that if he did not leave the said county he would likewise be foully dealt with,
and he did leave the county to escape personal violence. That on information and
belief the question was asked of the defendant concerning his relation to Kise
Eads for the sole and only purpose of calling the attention of the jury to the
fact that the defendant was related to a person who had a bad reputation, and
thus prejudice the defendant in the minds of the jury, and for no other purpose
whatever. That affiant took no exception or made no objection at the time for
the reason that he did not know until after defendant had left the witness stand
that Kise Eads was a man of bad reputation and of the facts connected therewith,
and that the affiant lives in Sheridan county. Whatever merit there may be in
this showing, it is and was apparent at the time the question was asked that it
called for irrelevant testimony. The court undoubtedly would have sustained an
objection upon that ground had an objection been made. Had that been done, the
alleged misconduct of counsel would have been eliminated. There was no counter
affidavit, and, however reprehensible the conduct of counsel may have been, the
court's attention was not called by timely objection to the alleged misconduct.
Without such objection and an exception taken at the time to an adverse ruling
and the opportunity offered the trial court by means of such objection to
correct such misconduct, the question cannot be here considered. This court has
so held in Horn v. State, 12 Wyo. 80, 73 Pac. 705, and in
Curran v. State, 12 Wyo. 553, 76 Pac. 577. The question was
not sought to be raised until after verdict. It was then too late.
2. Other alleged acts of misconduct of the said Ridgely with
reference to examining witnesses are complained of, but they were not objected
to at the time. An exception to the alleged misconduct is not of itself
sufficient (State v. Van Waters, 36 Wash. 358, 364, 78 Pac.
897; Rangenier v. Seattle Electric Co.  100 Pac.
842), and under the rule above announced error, if any, in that respect,
was not preserved in the record.
3. The defendant was sworn and testified as a witness in his own
behalf. It is urged that the court erred in overruling the objections interposed
by him to each and all of the following questions propounded by counsel for the
state on his cross-examination, to wit: "Q. Did you wire down to Allen G.
Fisher, an attorney at Chadron, Neb., and ask him to have the horse attached so
it could not be returned to Wyoming? A. No, sir. Q. Did you have your attorney
Johnson wire that? A. No, sir. Q. You didn't know he had wired? A. I found out
afterward." The first two questions having been answered in the negative, no
harm was done to the defendant in permitting them to be asked. They can only be
considered here as throwing light upon the third question and the alleged error
in permitting it to be asked over the objection of the defendant. The objection
to the last question was on the ground that it was not the best evidence, and
for the further reason that it had not been shown that Johnson was acting under
the direction of the defendant, and that it was not proper
The object and purpose of this examination was to show an attempt on
the part of the defendant to keep the horse, which he was charged with stealing,
out of the jurisdiction of the court and embarrass the state in the matter of
its identification. If such fact could be shown, it was proper for the state to
do so, as the jury might properly infer therefrom a consciousness of guilt on
the part of the defendant, the weight of which evidence would be for the jury.
In order to elucidate the matter, we will refer to the evidence on this phase of
the case. The evidence tended to show that in the summer of 1905 the defendant
sold the horse which was the subject of the larceny to Dr. Hale. At the time of
the alleged larceny, this horse had been broken and was kept in a pasture. In
the fall of 1907 the defendant, for and on behalf of his daughter, rounded up a
bunch of horses, sold, and delivered them to one Gregg, who shipped them east.
That in the bunch so sold to Gregg the horse sold to Dr. Hale was found in a
pasture near Chadron, Neb., where Gregg was keeping the horses. The defendant
contended that this was not the Hale horse, but a half-brother to that horse.
Much evidence was introduced on both sides upon the question of identity, and
after the horse was shipped back to the county seat it was examined by the
witnesses with a view to its identification, and during the trial was viewed by
the jury under the direction of the court. The defendant upon his direct
examination especially denied that the horse found in the pasture at Chadron,
Neb., and shipped back to Wyoming, was the horse he had sold to Dr. Hale. Any
attempt upon his part to prevent the horse from being seen and inspected at the
time of trial by witnesses who had theretofore known the horse was proper to go
to the jury as bearing on the question of guilt.(p.949)
It is urged that it was not the best evidence, in this, that the
question called for the contents of a telegram the proof of which was the
telegram itself. It will be observed that the defendant denied sending the
telegram. The state was not limited in its cross-examination nor bound by such
denial. The question in effect inquired of the defendant if he knew his attorney
had wired to Fisher to have the horse attached so it could not be returned to
Wyoming. It is apparent from the questions asked that the court and counsel
understood that the question related to the time in fact of sending such
telegram, if any was sent. It is equally apparent from defendant's answer that
he so understood the question. His answer is, "I found out afterwards." This
answer clearly implies that he understood the question as applying to the time
when the supposed telegram was sent. If the defendant knew that his attorney was
about to send or knew at the time such a telegram was being sent, it was a
matter of legitimate inquiry upon cross-examination as a circumstance bearing
upon the question as to whether he authorized or procured the sending of the
The action was not for a recovery upon a deed or other contract in
writing, nor one negotiated by telegraph, nor was it a criminal action for fraud
committed by means of telegraphing, in which cases the written contract, deed,
or telegrams would constitute the best evidence. The subject of the inquiry here
was the conduct of the defendant as indicative of guilt of the crime charged. It
is stated in section 890, Wigmore on Ev.: "The law is that a
defendant taking the stand as a witness may as a witness be impeached like any
other witness." Jackson v. State, 33 Tex. Cr. R. 281, 26 S.W. 194,
47 Am. St. Rep. 30; Hanoff v. State, 37 Ohio St. 178, 41
Am. Rep. 496. It is apparent that the state sought to prove the contents
of the telegram as an admission on the part of the defendant or to lay the
predicate for impeachment. If he sent or procured or was a party to the sending
of such a telegram, the latter would be competent evidence against him of what
it contained; but the state would not in the first instance be bound to produce
the telegram any more than it would in the first instance in the impeachment of
a witness, or proving the admissions of a party in writing be compelled to
produce a letter or other writing. In such a case, if the answers are
contradictory to the contents of the letter or writing, the party propounding
the questions has the option of having the letter or writing properly identified
and received in evidence, or of not pursuing the subject further. Sections
1023, 1260 (3), Wigmore on Ev.; Western Manufacturers'
Material Ins. Co. v. Boughton, 136 Ill. 317, 26 N.E. 591; Warth v. Loewenstein, 219 Ill. 222, 76 N.E. 379; State v. Hayes, 138 N.C. 660, 50 S.E. 623. If the defendant was a
party in an attempt to have any one send such telegram, that fact would be
competent evidence whether the telegram was sent or not. The method of proving
the acts and conduct of the defendant in this kind of a case was not confined to
written, but could be shown by oral testimony, and the contents of the telegram
as bearing on the defendant's conduct could properly be included in oral
questions propounded to him in laying the foundation for impeachment, as in the
case of an ordinary witness or in seeking his admission as a party. The inquiry
went to the conduct of a party to the case and sought an admission of such party
while testifying as a witness in his own behalf of prior conduct inconsistent
with his claim of innocence. He knew whether he was connected in any way with
the sending of such a telegram. That was the matter to which the question was
directed, and that question could not well be answered otherwise than orally.
Indeed, it was not, nor is it here, claimed that the authority to send such a
telegram must be in writing. In using the contents of a writing for the purpose
of laying the foundation for impeachment, the law is that the cross-examiner may
accept an affirmative answer as proof of the contents, nor is the rule about
proving a document's contents by production thereby violated. Section
1260, Wig. on Ev. Such affirmative answer amounts to an admission of the
witness or party. Upon this subject it is said in section 684 (9th Ed.)
Wharton's Criminal Evidence: "We may now regard it as settled that the
admissions of a party may be received when relating to the contents of a
writing, without notice to produce; nor can such testimony be excluded on the
ground that it is parol proof of a written instrument." The law as thus
announced sustains the ruling of the lower court in permitting the question to
4. One Berg, the grandson of the defendant, was called and testified
as a witness for the defense. His description of the horse sold to Dr. Hale
differed from that given by the witnesses for the state. Upon cross-examination
by the county and prosecuting attorney, he was asked the following questions:
"You talked to his (defendant's) attorneys about it? Talked over these
descriptions?" To this question the witness made answer: "Yes, sir." No
objection was interposed to the question, nor was there any motion to strike the
answer. Upon redirect examination the following question was propounded to the
witness: "You may state to the court whether you described that horse to
counsel, or whether counsel described the horse to you." The state objected to
the question as immaterial, which objection was sustained, and to which ruling
the defendant excepted. The defendant then offered to prove by the witness "that
the witness himself gave counsel a description of this horse without any
suggestion on the part of counsel at all." Objection to the offer was sustained,
to which ruling exception was taken. [paragraph continues next
[Currently at pages 946-949.
Proceed to pages 950-951.]