Hill v. State

Hurt, J.

Philip Kelman estrayed the animal charged to have been stolen some time in 1880. He was arrested and placed in jail on the 1st December, 1880, and has remained therein ever since. When arrested “he (to use the language of Mrs. Kelman) turned the horse over to my control and management by- express agreement.” Mrs. Kelman left her home for a short visit, asking her father “to look after the horse for her.”

The indictment charged that the horse belonged to Mrs. Kelman. The defendant objects that there is a failure of proof on this allegation: 1st. That, from the evidence, Mrs. Kelman is not the owner of the horse; and 2d. The property should have been laid in Philip Kelman, and not in Mrs. Kelman. To this we cannot agree; for if one person owns the property and another has the possession, charge, or control of the same, the ownership may be alleged in either. Art. 426, Code Crim. Proc.

The controlling question in this case is the sufficiency of the evidence to sustain the conviction. (The reporters will give the evidence.) The only witness whose evidence tends to connect the witness with the offense, if an offense was committed, is one E. E. Jewell, a half-brother of defendant. It seems that defendant is about twenty-one years of age, without father or mother, and that he has been under the fostering care and control of his half-brother, the witness. This half-brother swears that, “about two weeks after Fannie Kelman’s pony was taken, defendant came to where I was herding sheep, near Sid Billings’s, and after some desultory conversation defendant remarked “that Fannie Kelman had lost her pony. I replied yes, I suppose the Mexicans have taken it. He smiled and said no. I then asked him if he knew anything about it, and he said the Mexicans did not get it. He then said or told me that he got the pony; that after old man Kennedy’s family had gone to bed and got quiet he got up and went into W. S. McAda’s field and hemmed up the horse, and caught him and took him to a thicket on Long Hollow, and tied him in the thicket until Jim Pearce Wright’s herd came along next morning, and he then turned the horse loose in said herd, and Wright took him west; and defendant received from Wright a good saddle in return for the pony. The confession was voluntarily made to me by defendant, without inducement or threat on my part. Bascom McAda had given Brazzel Kennedy authority to get this pony out west, and had given him the brand to look for. There was nobody present when defendant and myself had this conversation. Defendant’s counsel asked witness if he did not try to get defendant to leave the country because witness had forged a bill of sale to an estray horse, and wished defendant to witness it for him and defendant refused. Witness answered he did not, but tried to get the defendant to leave the company of bad men who were leading him into trouble; also tried to get defendant a situation with Dock Burnett to drive cattle to Kansas, and did not try to get him to leave for fear he would testify against him about said forgery. Witness said he did not forge the bill of sale, and knew nothing about it; also testified that the reason he, witness, prosecuted defendant for stealing this horse was to get him, defendant, out of and away from this country on account of his association,” etc.

From the sworn testimony of this witness, his object was not to get defendant out of the country to prevent him from proving the forgery, but, prompted by the loving regard of a kind relative, he desired to snatch him from his depraved and villainous associates. These must have been of the basest sort, indeed, for he verily believed that the inmates of the penitentiary would be an improvement, with whom it was his loving desire to place his half-brother. To this he directly swears. This may be true, but we will not believe it, nevertheless. The eternal law of our nature revolts at such a proposition. His half-brother’s associates were very bad; to reclaim him he sent him to the penitentiary. How a sensible jury could have given credence to this witness we cannot understand. ■ This court will never consent to a verdict and judgment the result of which is the incarceration and infamy of a citizen upon the evidence of such a kind and considerate brother, unless corroborated by cogent facts. Is he corroborated? Not in the slightest degree. He is not only uncorroborated, but self-contradicted in a number of facts, as shown by his evidence before the committing court,— contradicted and impeached by his own record.

On the other hand, when we look to the evidence of the other witnesses, the guilt of the defendant is rendered very improbable. The horse was taken from McAda’s field near old man Kennedy’s, if taken at all. By the old man and his son defendant was seen to have gone to bed that night at Kennedy’s, and was seen as late as eleven o’clock at night, and between four and five o’clock next morning. This was the night the horse was said to have been taken. G-. B. Kennedy testified to the fact that he helped Jim Pearce Wright drive his cattle out near Chandler’s and then turned back; defendant had no chance to handle the horse during the day. Before being estrayed, the horse’s range was in the forks of the Guadalupe and San Marcos rivers. He was missing on the 14th of February, and was seen by tho witness Lemmond in March, a half dozen times, about eight miles north and between McAda’s and the forks of the above named rivers. There is no evidence that the horse was taken by any person, save the fact of his being missing. Mrs. Kelman was not at home when this occurred. Old McAda was inquiring after the horse next morning. These facts show evidently that, if taken by any person, these witnesses knew nothing of the fact further than that he was not in the field. To convict on the confessions of a defendant the corpus delicti must be shown aliunde. It cannot be done by confessions. There was no attempt by the State to prove the corpus delicti. McAda was hot introduced as a witness at all. But, concede the corpus delicti, there being no evidence tending to connect defendant with the theft, save that of R. R. Jewell, and his coming in such a questionable shape, being uncorroborated, conflicting, contradictory and stultifying, we are not willing that this judgment should stand.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded'.