EADS v. STATE.

[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 Prosecuting Attorney--Exceptions.
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.

2. Criminal Law--Appeal--Misconduct of Prosecuting Attorney--Exceptions.
An 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.

4. Larceny--Evidence--Admissibility.
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 guilt.

5. Larceny--Evidence--Admissibility.
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.

6. Larceny--Evidence--Admissibility.
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 it.

7. Witnesses--Impeachment--Extent.
Accused taking the stand as a witness may be impeached like any other witness.

8. Criminal Law--Best Evidence.
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.

9. Larceny--Evidence--Admissibility.
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 Evidence--Admissibility.
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.

11. Witnesses--Impeachment.
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.

12. Witnesses--Redirect Examination.
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.
Inquiry may 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 Court.
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.
A 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 improper.

16. Witnesses--Examination--Impeachment.
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, and incompetent.

17. Weapons--Carrying Weapons.
It is lawful to carry an unconcealed weapon for a lawful purpose.

18. Witnesses--Impeachment--Proof of Crime.
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 therefor.

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. [1909] 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 cross-examination.

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 telegram.

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 be asked.

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 page]