
    Parker vs United States.
    Opinion delivered January 14, 1898.
    
      1. Larceny — Possession of Stolen Property as Evidence.
    
    It was error under an indictment for larceny to allow the pr< secution to show that the defendant was in possession of othe stolen property. In order to make such evidence competent it must be shown that the taking of the stolen property foun in his possession was about the same time and from about tb same place as the property which the indictment charges hh with having stolen.
    
      2. Larceny — Possession of Stolen Property — Time and Place.
    
    The court permitted testimony over the objections of the d fendant concerning the taking of other cattle about the san time as those taken for which defendant was indicted, but tl evidence dees not fix the taking as being from about the san place. Held, Error.
    
      3. Hearsay Evidence — Exception.
    As a general rule, hearsay evidence must be objected to specifical as such, but where the evidence complained of is certain hearsay evidence, the court should refuse its admission upon ; objection for incompetency.
    
      Remarks of Counsel.
    
    Where counsel objects to a part of the argument of opposii counsel, but does not have the court rule upon his objections save any exceptions, this court will not consider such obj< tions upon appeal.
    5. Witness — Under rule — Remaining in Court.
    
    After the rule had been placed upon the witnesses, one of t witnesses for the prosecution remained in the court room dt ing the trial. It was not error for the court to allow su witness to testify but the court should, if requested, instn the jury that this fact might be taken into consideration effecting the credibility of the witness.
    
      Appeal from the United States Court for the Southern listrict.
    C. B. Kilgore, Judge.
    Wilson Parker and Dan Shipman appeal from a con-iction of larceny.
    Reversed.
    On the 20th day of October, 1896, an indictment was ^turned into the United States court for the Southern dis-:ict of the Indian Territory against the appellants, Wilson 'arker and Dan Shipman, charging them jointly with the irceny of two head of cattle, the property of one W. B. lenson. On April 8, 1897, the case was tried, resulting in verdict of guilty against both defendants. A motion for a 3W .trial was filed, overruled, and exceptions saved. The sfendants were then duly sentenced. No objections were .ade to the form of the indictment, or to the charge of the >urt. There are 18 assignments of error. The first to the ¡nth, inclusive, and the twelfth and thirteenth, present ob-ctions to the admissibility of evidence, and assign errors pon two grounds: First, that the statements of certain itnesses were hearsay; and, second, because of the incom-fiency, irrelevancy, and immateriality of certain other evence'. The eleventh assignment is that the court erred in lowing a certain witness to testify who had not been placed ider the rule, but had remained within the hearing of the her witnesses while testifying. The fifteenth to the eigh-enth, inclusive, are that the court erred in overruling de-ndants ’ motion for a new trial. The second assignment, ¡sides setting up the admission of certain incompetent evi-mce, is that the court erred in not sustaining the defend-ías’ objection to a certain side-bar remark made by the Baited States attorney during the trial. Upon the trial the ■osecution proved by competent evidence that Henson, the prosecuting witness, had two head of cattle stolen from hiir —one a deep-red cow, branded U, and the other a blac heifer, unmarked and unbranded; that these cattle, whe taken, were running in the field or pasture of one Misner that the cow had never been recovered, but that the blac heifer was afterwards found in the possession of one Arthr James, and from him was recovered by the owner. Thei was no competent testimony showing how James becan possessed of her. It was proven that shortly after the la] ceny of the cattle the defendants drove and sold to Pollai four head of cattle, two of them resembling the stolen one The other two were white cows. Pollard butchers the red cow and one of the white ones. T1 other white one strayed away, and has never been r covered by him. He sold the black heifer to one Crir Crim testified that he bought the heifer from Pollard, ar sold her to one Haube. Neither Daube nor James we: placed upon the stand. The only evidence of the identific tion of this heifer as being the one which the defendan sold to Pollard is the description given of her by Henso the owner, and by Pollard, together with the statement Henson that shortly after he missed his cattle from t' range, having learned that Pollard had bought cat! answering the description of his, he went to him, and g from him such information as led him to go to James for t animal, and there found her. The identification of the r cow depended entirely upon the description given of her ' the owner and Pollard. Henson, of course, gave an exe description of his stolen cattle, but he had never seen the in the possession of the defendants ; but Pollard was unat to accurately describe them. He knew that he had boug of the defendants, shortly after the larceny, together wi two others, cattle of the general description of the stol ones. The heifer had no marks or brands upon her, and did not remember those of the cow. The defendants h Lever been seen with the cattle, except at the butcher’s pen. [’he prosecution, to secure a conviction, relied mainly upon he fact that these stolen cattle were, recently after the heft, found in the possession of the defendants ; and, inas-mch as they (the defendants ) were claiming that the cat-Le which they had sold to Pollard were different from the tolen ones, the question of identification became the most nportant one in the case. It was the contested point. If he cattle in the defendants’ possession recently after the rrceny were the stolen ones, then there was no explanation f their possession. The defendants introduced a number f witnesses who testified to facts tending to show that the .eifer had been raised, from a calf, by them, and that they ad purchased the cow from a man by the name of Joy, and uat she had never been owned by the prosecuting witness, nd therefore the cattle which they admitted to have sold to ’ollard were not the stolen ones. The case was a close one. 'he identification of the stolen property was not perfect. It i obvious that under these circumstances it was important )r the district attorney, if he had any evidence upon the uestion of the identification of the stolen cattle, by which e could rebut the evidence of the defense, to introduce it efore the jury. For this purpose ( that is, for the purpose E more clearly identifying the cattle sold to Pollard as be-Lg the stolen ones ), and to rebut the testimony of the de-mdants that they had bought one and had raised the other, e was permitted, over the objection of the defendants, to itroduce evidence of the fact that two white cows belong-Lg to other owners, found in the possession of the defend-its, with the alleged stolen ones, and sold by them to Pol-,rd, were also stolen property, taken from a range at or jout the same time that the others were taken from the Isner field. The evidence failed to show that the two sets : cattle were taken from or about the same place. The >mpetency of this testimony is the principal question raised by the assignments of error. Conceding that the proof wai sufficient to show that the two white cattle were found h the possession of the defendants, that they were stole] property, and that they were taken at or about the sam time with those alleged to have been stolen, without an; evidence that they were taken from or about the same place was it admissible in this case for any purpose ?
    
      0. B. Kendrick, J. C. Graham, Henry M. Furman, G. 1 Herbert and Jesse H. Hill, for appellant.
    1. The court erred in allowing testimony ks to othe larcenies of cattle from other parties about the time of th alleged larceny in this case. Smith vs State, 34 S. W. 108C Horton on Crim. Evid. (9th Ed.), § 30; Billings \ State, 52 Ark. 308 ; Dove vs State, 37 Ark. 264 ; Endaily \ State, 39 Ark. 278 ; Oxier vs United States, 1 Ind. Ter. 8E 2 Bishop on Crim. Proc. § 750.
    2. The court erred in allowing testimony that son one had sent the witness word to meet him and they wou] settle for the cattle. Barbee vs State, 4 S. W. 584.
    
      A. G. Gruce and G. G. Calmes, for appellant.
    1. Improper remarks of Counsel before a jury a: waived unless objection is made and the ruling upon tl same secured from the judge. St. L. & S. F. R. R. Co. Browne, 62 Ark. 254.
    2. It is insufficient to object to testimony as incoi petent, irrelevant and immaterial. Noonan vs Mining Cc 122 U. S. 1061 ; 1 Thompson on Trials, § 693, 694.
    3.In a criminal case the question whether the ve diet was contrary to the evidence will not be tried by the 1 the appellate court, if there is any evidence proper to go the jury in support of tbe verdict. Crumpton vs United States, 138 U. S. 361; Walker vs United States, 4 Ark. 88.
    4. Evidence that other property was stolen about ¡he same time and in the same neighborhood, is admissible. Tones vs State, 14 Tex. Ct. App. 94 ; Reed vs State, 54 Ark. >26 ; Oxier vs United States, 1 Ind. Ter. 85.
   Clayton, J.

( after stating the facts). It is unques-ionably the law that, while proof of other independent ¡rimes is not admissible to establish the guilt of the defend-,nt of the offense on trial, yet, under certain circumstances,. >ther crimes may be proven. In cases of larceny, if prop-rly connected, the proof that other stolen property was ound in the possession of the defendant, with the property harged to have been stolen, is admissible for either of four mrposes: (1) To prove felonious intent; ( 2) to prove hat the alleged theft was a part of a continuous transaction r scheme of larceny ; (3) to identify the defendant; ( 4) Id identify the stolen property. In all of these cases, how-Iver, it must not "only be shown that the defendant was ound in possession of the property, and that it was stolen ; ut, in addition thereto, it must appear from the proof that here was some connection between it and the property harged in the indictment to have been stolen. If nothing e shown but that it was in the defendants’ possession, then } is inadmissible in every case, because it tends to prove othing but another, and a separate and independent, lar-eny. If, in addition to the fact that the stolen property ras found in the possession of the defendant recently after íe alleged larceny, it be shown that it had been stolen at or bout the same time and place as that charged to have been tolen, then it is admissible in all of the cases, because, nder the circumstances of each case, it tends to prove the latter in controversy. Cases arising under the first propo-ition are usually those where the taking by the accused of the alleged stolen property is admitted or clearly established and the defense is interposed that it was taken under som< claim of right, or color of title, or through some mistake O] misapprehension. In such case, for the purpose of proving the intent, the prosecution, in rebuttal, may show that, a the time defendant was found with the property in question he was in possession of other property stolen about the sam< time and place. Under the second proposition; it ma; be shown that the alleged stolen property was found in th possession of the defendant, together with a number of othe stolen articles, taken at different times and places, not to remote from the time and place of the alleged larceny, no for the purpose of showing that the defendant is a comino thief, or of proving an independent crime against him, bn as tending to show that the alleged taking was a part of continuous transaction or scheme of larceny, and thus shec ing light on the transaction in controversy. Cases arisin under the third proposition are generally those where th larceny is admitted or established, and the defendant ha been seen with the alleged stolen property, but under sue circumstances as that he was not recognized by the witness as, if he were a stranger to him, or was in disguise, or see in the night-time ; or, it may occur in cases where no or has seen the defendant in possession of the property allege to have been stolen, but the circumstances point to his guil without clearly identifying him.- In such case, proof ( other stolen property having been found' in his possessic shortly after the theft, taken about the same time and plac is admissible for the purpose of identifying him. The ca; of Long vs State, 11 Tex. App. 387, is a good illustration < cases of this kind. In that case the court says: “T1 court, over the objections of defendant, permitted pro that other stolen cattle were in the bunch with which tl cow charged to have been stolen was driven to Seguin. J this there was no error, in view of the peculiar facts of th jase. Tbe most difficult thing on the part of the prosecu-,ion was to connect defendant with the possession of the sow charged to have been stolen. To do this, it was necessary to describe and identify the herd with which she was vhen taken to Seguin. To do this, evidence that other cat-le from the same range were taken at the same time was proper. Some of the state’s witnesses were able to iden-iify the herd, but not the cow in question ; others, the herd, md stated the fact that the cow charged to have been stolen vas with it. The herd being thus identified, the state at-empted to connect the defendant with it (the herd); thus ihowing his connection with, or possession of, the animal ¡harged to have been stolen. We are of the opinion that, mder the circumstances of this case, these facts were ad-nissible ; but, most evidently, it was the duty of the court o have informed the jury of the purpose for which this evi-lence was admitted. ” If the larceny of the alleged stolen troperty be proven, but the identity of the defendant is in loubt, then, if the fact that other property which had been aken was stolen at the same time and place, and was found n the possession of defendant shortly after the larceny, be ¡stablisned, inferentially he is the man who took it all. In he case of Long vs State, supra, the fact that the defen-lant, shortly after the larceny, was found in possession of ither cattle, whether stolen or not, which the unrecognized nan was seen driving with the cattle alleged to have been tolen, would have been competent proof for the purpose of dentifying him as the man who was seen driving the stolen attle ; but it would not have been competent to have proved hat these other cattle were stolen, but for the fact that they vere taken from the same range, ■ and at the same time, vith those in controversy. Cases arising under the fourth >roposition usually occur when the alleged stolen property ound in the possession of the defendant is similar to others of hat class, but without marks of identification whereby it may be distinguished, or the brands and marks may have been destroyed, or the property so mutilated as to leave il without means of identification. In such cases, proof that the defendant, recently after the larceny, was in possession of other stolen property, taken about the same time and place, is admissible for the purpose of identifying that which is in controversy, and found in his possession. If the property named in the indictment be shown to have been stolen, but the identity of that found in possession of the defendant, claimed to be the stolen property, is in doubt, then the fact that he was found with other stolen property, which had been taken from or about the same place, and at the same time, would so connect the two articles as that the identification of one would tend to identify the other; but i: not taken from or about the same place, although it maj have been taken at the same time, and found in the posses sion of the defendant, it would have no such tendency, anc therefore for that purpose the proof of it would be inadmis sible. In the case before us the proof tends to show tha' the two white cows of Adams and Smith were stolen; tha they were taken about the same time as those of the prose cuting witness; that they were found in the possession o: the defendants, with the cattle charged to have been stolen But there is no evidence that they were taken from or abou the sainé place. In this the case of the government is fatally defective. As has been shown, the whole purpose of tht United States attorney in offering this proof was to identifj the Henson cattle. It is not possible that it could have beei offered for any other purpose, and therefore, under the cir cumstances of this case, it was inadmissible.

Larceny — Possession oí stolen property.

The next exception raised by the assignment of erroi which we will notice is: “That the court erred in overruling the objection of the defendants to the admissibility of th< testimony of D. B. Henson and S. S. Henson relating to th< larceny of the aforesaid white cows.” Their testimony ii his connection was as follows: “D. B. Henson. Q. Do you :now whether or not there were other cattle stolen out there rom other parties about that time? (Objected to as incom-etent, irrelevant, and immaterial. Objection overruled; to rhich the defendant excepts.). A. Yes, sir; there was a reat deal of taking of cattle by some one at that time. By Ir. Cruce: Unless these men have all lied to me, I can show aat these two men drove other cattle out there at this time. The defendant objects to the remarks of theU. S. attorney.) What other cattle were lost at that time? (Objected to 3 incompetent, irrelevant, and immaterial. Overruled; to hich ■ the defendant excepts.) A. Mr. Tobe Smith lost a ow, and Mr. Adams lost a cow at the same time. Q. Do ou know whether or not they recovered them? Objected to as incompetent, irrelevant, and immaterial, verruled; to which the defendant excepts.) A. Mr. dams got his. Mr. Tobe Smith never got his ick, though. Q. What kind of a cow was Adams’ cow? Objected to as incompetent, irrelevant and immaterial, verruled: to which the defendant excepts.) A. I suppose was a white cow. Q. What kind of a cow was the other íe, — Tobe Smith’s? (Objected to as incompetent, irrele-mt, and immaterial. Overruled: to which the defendant ccepts.) A. Tobe Smith told me what kind of a cow his is; but I think, as well as I can remember, she was alight-d cow. He did tell me what her brand was, and all about (The defendant objects to the answer. Overruled.)’, 3. S. Henson. Q. Do you know whether or not any one se lost any cattle there at the same time? (Objected to as competent, irrelevant, and immaterial. Objection over-led: to which the defendant excepts.) Q. Who was it 3t any? A. That gentleman there lost one, — Mr. Adams, ’ointing to a gentleman in the court room.) Q. What nd of a cow did he loose? A. I could not tell you. Q. d you ever see it? A. No, sir. Q. Who else lost any? (Objected to as incompetent, irrelevant, and immaterial Overruled. Exception.) A. Tobe Smith. Q. What kinc of a cow was pt? A. I don’t know. Q. Do you kno-v whether they got their cows back? A. Mr. Adams got hi; back, he told me, yesterday. (Objected to, — what Mr Adams told him. Overruled. Exception.) * * * Q. Ho\ do you know, Mr. Henson, that Mr. Adams lost a cow at th same time? A. He told me. Q. You don’t know, as ¡ matter of fact, that he lost it? A. No, sir; only what Mr Pollard told me. Mr. Pollard told me he lost a cow at th same time; she got out of the pen, and he couldn’t find her. The above testimony was objected to as being “incompetent irrelevant, and immaterial,” and we are here asked to d< clare its admission to have been error, for two reasons : (I Because, under the circumstances of this case, it was an a tempt to prove a separate and independant larceny. Pc the reasons heretofore stated, we hold that this objectio should have been sustained. It is not sufficiently show that the two sets of cattle were taken from about the san place. (2) Because it is hearsay. Upon this point tl United States attorney contends that, as this objection wí not specifically made at the trial, the court was not bound • notice it. While it is true that all hearsay evidence is i: competent evidence, yet it is the rule that the specific, ar not the general, objection should be plainly stated to tl court, so that the court’s judgment may be fairly obtained relation to it. But in this case the evidence objected to being incompetent was so obviously and certainly hearse that the court, wé think, even on its own motion, shou have stricken it out.

Possession of stolen property-place.

Evidence-Hearsay.

In the second assignment of error the side-bar rema: of the United States attorney is assigned as error. Whil counsel, in their conduct of a case and in argument, al allowed some considerable latitude, yet if it can be shovB that the remark was improper, and was prejudicial to tj| Iefendants’ case, and proper objection was made, and over-•uled by the court, and exceptions were duly saved, this sourt would not hesitate to reverse because of such an error, h this case, while the defendants objected to the remark, no ■uling of the court upon the objection was pressed or had, md. no exceptions were saved, and therefore we are not called upon to notice this assignment.

Witness not prevented from testifying by remaining in Court-room.

The eleventh assignment of error is as follows : ‘Eleventh. The court erred in allowing John Howell to be ntroduced as a witness and to testify in this case, over ob-ection of defendants, after he had testified that he had been n the court room during the trial after the rule had been 'laced upon the witnesses at the request of counsel for the ■overnment; the proof showing that said witness was not, nder the law, privileged from the rules.” Section 2906, lansf. Dig., provides that, “if either party require it, the idge may exclude from the court room any witness of the dverse party, not at the time under examination, so that e may not hear the testimony of the other witnesses. ” The xclusion of witnesses from the court room during the trial f a case is left, by this section, in the sound discretion of íe court. Randolph vs McCain, 34 Ark. 696. When, howler, a witness, by inadvertence, has remained within' the earing of the other witnesses during the trial, and is after-ards permitted to testify, the court should, we think, if so jquested, instruct the jury that this fact might be taken do consideration by them as affecting the credibility of the itness’ testimony; but, as this was not asked, we do not nd that the trial court abused its discretion in this mattpr. or the errors aforesaid this case is reversed and remanded Rr a new trial.

Springer, C. J., and Thomas, J., concur. Town-snd, J., did not participate in the case.  