The charge of the court on the subject of a felonious taking is correct, clear and adequate.
The substantial defense of the accused was that he owned the heifer and that his taking was lawful and not wrongful. He also put forward an alternative defense, namely, assuming the heifer to have been the property of another and that the accused took it wrongfully, yet he took it openly and under a claim of ownership. The court stated the law applicable to this alternative defense fully and fairly. It told the jury that to constitute the crime there must be not only a wrongful taking, but a wrongful taking with the intent of thus depriving the real owner of his property by appropriating it to the use of the taker; that although the property of another is wrongfully taken, yet if taken through mistake, theft is not committed; there must be a taking with a criminal intent and, as bearing upon the facts and claims in the case, a felonious taking requires a knowledge in the taker that the thing taken is the property of another, and an intention to deprive the owner thereof by appropriating it to his own use, whether it is property secretly taken or cattle wrongfully driven from a pasture where the owner has placed them.
The jury could not have been misled by this charge. They must have acquitted the accused if they followed these instructions, if it appeared from the evidence that the accused had taken the heifer in the honest, although mistaken, belief that it was his own property.
This assignment of error is improperly framed in adding to the claim of error in the statement of law by the court an apparent claim that the court also erred in not calling the attention of the jury to the importance of the facts he claimed to have proved, as controlling evidence, of his honest belief in his ownership of the property taken, viz., the claimed fact that he took the property openly under an open claim of ownership. This claim is loosely expressed, and framed in language perhaps not quite consistent with the statement of the case in the finding. The absence of a request by the defendant to charge, cannot be supplied by statements in the reasons of appeal. *Page 60
As a claim of error for failure to comment, or for unfairly commenting upon the weight of evidence, it is not supported by the finding. It appears that the evidence affecting the defendant's belief in his ownership included testimony on the part of the State that Knight owned the heifer and the defendant did not; that the defendant knew that Knight owned the animal and knowing this drove her from Knight's possession to his own premises and there immediately marked her with the identifying mark of his own cattle; and included evidence on the part of the defendant that he and not Knight owned the heifer; that he drove her from the pasture where she was in his own possession, and did not at that time mark her with his identifying mark, but that such mark was placed on the heifer (which he had himself raised) nearly a year previous and within about eight weeks of her birth; and also that he took her openly and openly made claim to her ownership. However important in most cases may be the fact that an alleged thief took the property openly and under a claim of ownership, as tending to prove an honest belief in his own ownership of the property, it is patent that in a case like this, such facts, if proved, may not necessarily be inconsistent with a guilty knowledge.
In the present case it is entirely clear that the contested, guilty knowledge, turned largely upon the question of ownership and various acts of the defendant in controversy, and that the testimony in respect to his open taking and claims of ownership may have been entitled to very little weight. It was within the discretion of the court, and may have been its duty, to let the jury understand, either directly or indirectly, its own opinion upon the weight of this evidence, so long as it was done fairly and properly and within the limits fixed by law.
It must be presumed that the court did act fairly and properly in any reference it may have made, or omitted, in respect to the claims now urged by the defendant. It is sufficient, however, that the record does not disclose that the court did, or did not, call the attention of the jury to claims *Page 61 upon matters of evidence as stated in the defendant's reason for appeal.
The exception to the portion of the charge quoted, as failing to state accurately and fairly the law on the subject of felonious intent, is not well taken. The statement or intimation that the court did not fairly call the attention of the jury to the force of facts claimed by the defendant to have been proved, is not supported by the record, and must be presumed to be incorrect. To present a question or questions like this, the record must be framed for that purpose, — presenting fully the state of evidence and a statement of what the court did say.
Upon the trial the State produced as a witness one Charles E. Haskell, a boy ten years of age. He testified that in October, 1900, by direction of the defendant, for whom he then worked, he assisted the defendant in driving up the red heifer in question to the defendant's barnyard, and that there the defendant cut a hole in her left ear with a punch. On cross-examination he testified that in the fall of 1900, and in June after the red heifer was replevied, he had talked with Mr. Knight and one Ira Main about this, and the cross-examination then proceeded as follows (referring to the conversation in the fall): "Q. What did you tell them? A. They asked me if I had seen any red heifer and I told them, yes. Q. What else did you tell them? A. I told them Mr. Main marked one. Q. What else did you tell them? A. I never told them nothing else. Q. Didn't you tell them where he marked it? A. No, sir."
The defendant, afterward, to contradict this witness, called said Knight and asked him the following questions, which, upon objection by the State, were excluded, the defendant duly excepting: "State whether or not last fall the Haskell boy told you he saw Mr. Main cut a hole into this red heifer's ear. State whether or not last fall the boy, Charles Haskell, told you and Ira Main, when you were together, that he saw Davis and Lafayette Main have this red heifer in the yard at the old house and cut a hole in her ear."
It is clear that these questions were not asked for the purpose *Page 62 of contradicting the boy's testimony in chief — that he saw the defendant mark the heifer in October, 1900. They were asked, and the defendant's counsel in his brief expressly claims that they were asked, for the purpose of contradicting the statements made by the boy on cross-examination.
He was not cross-examined as to any statement made out of court inconsistent with his testimony, but as to what he had told Mr. Knight, and Mr. Knight was not produced as a witness for the purpose of disproving the boy's denial of having made a statement out of court inconsistent with his testimony, but for the purpose of contradicting the boy's version on cross-examination of a conversation with Knight consistent with his testimony. The particular statement to which the questions excluded applied, was this: the boy had said that he had told Mr. Knight in the fall of 1900 that the defendant had marked the heifer and told him nothing else; he was then asked: "Didn't you tell him where he marked it?" And he answered, "No, sir." To contradict this Mr. Knight is asked: "State whether or not last fall the Haskell boy told you that he saw Mr. Main cut a hole into this red heifer's ear." It is apparent that no answer to this question would fairly contradict the substance of the boy's testimony, assuming the contradiction to be proper. If Mr. Knight answered in the affirmative, his answer would tend to confirm the truth of the boy's evidence in chief, and the substance of his statement on cross-examination. The material thing, if the matter were material at all for the purpose of contradiction, was that the boy told Knight that the defendant had marked the heifer. It was not material if he was incorrect in saying he had not told him where he had marked her. On the other hand, if Mr. Knight's answer were in the negative, it would tend to prove the truth of the precise statement the defendant was seeking to contradict. Possibly the defendant's counsel had in mind something which his cross-examination of the boy and the questions put to Mr. Knight were not adapted to accomplish; if so, the purpose does not clearly appear from the recitals in the record, nor from the claims made in his brief. The court did not err under the circumstances of the *Page 63 case in excluding these questions as being improperly put for the claimed purpose of contradicting the witness Haskell.
The other exceptions to rulings on evidence are not well taken; they present questions which are neither novel nor doubtful.
The main grievance of the defendant, in respect to the ruling of the court that counsel was not entitled to state or to read to the jury that part of the statute which merely prescribes the punishment for the offense charged, is that he was unduly restricted in urging upon the jury the exercise of a deliberate caution proportioned to the seriousness of the crime. There is one rule for the protection of an accused against an unjust conviction of crime. In every case the jury must be satisfied of guilt beyond a reasonable doubt, and is charged with the same duty of deliberate caution; but undoubtedly that duty is in fact more readily appreciated by the jury in trials for the graver crimes. For this reason latitude may, in some cases, be allowed counsel in referring to matters of general knowledge affecting the nature and gravity of the offense charged, not strictly a part of the case submitted to the jury, dependent in its extent upon the peculiar character of the case, and largely upon the discretion of the trial court. In the present case the record does not show that any question of this kind was passed upon by the court; its attention was not called to any special reason for permitting a wide latitude in commenting on the serious nature of the offense, and the ruling made was not in itself a prohibition of reasonable comment of this nature.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.