
    STATE v. CHYNOWETH.
    No. 2356.
    Decided July 29, 1912
    (126 Pac. 302).
    1. Witnesses — Statements out of Court — Effect. What a witness, who is not a party, states out of court is not evidence in chief to prove the fact stated by him, but can only be shown to discredit his testimony. (Page 362.)
    2. Criminal Law — Review—Instructions. Failure of the trial court to give an instruction limiting the consideration of impeaching testimony is not assignable as error, where no such instruction was requested. (Page 362.)
    3. Criminal Law — Review—Sufficiency of the Evidence. In determining the sufficiency of the evidence to sustain a conviction, the Supreme Court can consider only such evidence as bears in some degree upon the issues involving the merits. (Page 362.)
    4. Larceny — Evidence—Sufficiency. In a trial for theft of a calf, evidence held insufficient to show that accused knew, or had reason to believe, when he branded the calf, that it was not his property. (Page 362.)
    Appeal from District Court, Sixth District; lion. J. F. Ghidester, Judge.
    William Chynoweth was convicted of larceny and he ap-
    ReVERSED AND REMANDED.
    
      
      W. F. Knox for appellant.
    
      A. R. Barnes, Attorney-General, and Geo. G. Buckle, and E. V. Higgins, Assistant Attomeys-General, for tbe State.
    
      
       State v. Hansen, 40 Utah, 418, 122 Pac. 375.
    
    
      
       State v. Potello, 40 Utah, 56, 119 Pac. 1023.
    
   MeCARTY, L

William Cbynoweth, tbe defendant, was tried and convicted in tbe district court of Garfield Oonnty, Utah, and sentenced to a term of three years in tbe state prison. It is alleged in tbe information tba,t tbe defendant, on tbe 20tb day of October, -1910, in tbe County of Garfield, State of IJtab, did feloniously steal, take, and drive away one heifer calf, tbe property of one Rufus B. Liston, Tbe defendant, in bis assignment of errors, assails tbe judgment on tbe ground that it is not supported by, but is contrary to, tbe evidence.

Liston, tbe alleged owner of tbe calf described in tbe information, is, and for many years has been, engaged in farming and stockraising at Escalante, Garfield County. His cattle range, winter and summer, upon tbe public domain in Garfield County. Tbe defendant and bis father, Sampson Cbynoweth, were, at tbe time this trouble arose, and for seven or eight years prior thereto bad been, engaged as partners in tbe cattle business at Henrieville, Garfield County. Their cattle ranged upon tbe public domain in Garfield and Kane Counties. Tbe defendant bad charge of tbe cattle and looked after them while they were at large upon tbe range. He attended to tbe branding of tbe calves. In tbe fall of each year, be would collect together the cows with sucking calves, separate tbe calves from tbe cows, turn the cows loose upon the range, and drive the calves to Henrieville, and there keep them inclosed in a pasture until they were weaned. Tbe evidence for the state tended to show that a roan cow with a roan heifer calf, tbe property of Liston, were seen running at large upon tbe public domain in Garfield County by several parties and at different times covering a period of several months in 1910. Tbe ealf was first seen in March. ■ At that time it was with its mother, tbe cow mentioned, and appeared to be two weeks old. Tbe last time tbe cow and calf were seen together running at large upon the range was about the middle of August. The calf at that time was neither branded nor earmarked. The parties, who claimed to have seen the calf with its mother on the occasions referred to, testified that they saw it again about the 17th of October at Henrieville in the defendant’s possession, and that his ¡brand and earmark were on it; that the defendant claimed that he had raised the calf; and' that it was his property. It is admitted that the defendant kept the calf in his possession in Henrieville with about fifty or sixty other calves for about a month or six weeks, and then turned it onto the winter range with his other calves. In December W. J. Henderson and Myron Willis, two of the parties who claimed to have seen the Liston cow and calf together upon the range 'during the spring and summer months, went in seai’ch of the Liston cow and calf in question. Their object in hunting up these animals was to get evidence upon which to base a charge of grand larceny against the defendant. They found the cow, and1 put her into a corral with about fifteen head of other cattle. This corral is situated in what is known as Tie Hatch Canyon. The next day they found the calf, and put it into the corral with the cow. They testified that when “the cow got sight of the calf she went up to it and began to smell of it, and followed it around through the corral for a few minutes,” but that “the calf did not seem to know her;” that they “took the cow and calf from the corral and drove them back into the pasture (in Tie Hatch Canyon) and left them there, and then went home.”

The foregoing, with the exception of some evidence of an impeaching character, to which we shall refer later, is, in substance the state’s case.

The defense interposed by the defendant was that he owned the calf; that he had raised it; and that a certain cow of his was its mother. The defendant called as a witness John Pollock, the committing magistrate who bound him over to answer in the district court to the charge set forth in the information. Pollock testified' that in the latter part of Sep>-tember, 1910, he was riding the range about six miles south of Henrieville and saw one, of defendant’s cows, and that a “long-eared” calf was following the cow — that is, a calf that was neither branded nor earmarked — that the cow and calf were about 150 yards from him; that a few days thereafter he met the defendant and told him that he had seen this cow and calf, and informed him when and where he had seen them. In describing the calf at the trial, the witness said: “It was apparently a dark red calf; that is all I could tell. Of course, it could have been perfectly roan, the distance I was at, and you couldn’t detect.” About the middle of October, 1910, the defendant, his brother, Harvey Ohymo-weth, John Willis, and Ernest Mangum were on the range gathering their calves for the purpose of separating them from the cows and weaning them.

John Willis was called) as a witness, and testified in part as follows:

“I live in Henrieville, and have lived there for about twenty-four years. I am engaged in farming and raising cattle. I know the calf in controversy. The first time I saw that calf was some time along about the middle of October (1910), . . . about ten miles below Henrieville. We were all gathering up our calves to wean. I ran onto this red cow of Will Chynoweth’s (defendant) and a cow and calf of Roan Savage. . . . The calf was with her (det-fendant’s cow) at the time. The two calves had just sucked a few minutes before I found them. They both had wet on their noses. Both cows were giving milk, and as I drove them along both calves followed. Each followed its own mother. . . .We took them to the Slick Rocks corral that forenoon. I got there about noon, and that afternoon we drove them to Horse Yalley corral. We had in the neighborhood of about sixty head of cattle 'altogether. I noticed that that cow and calf stayed together. We put them in the Horse Yalley corral and kept them there over night. Next morning we branded the calf and separated it from its mother and took it hom|e. Will Chynoweth (defendant) branded it.” On cross-examination the witness said: “When I saw this calf with its mother, it had just sucked. I did not see it suck; but I could tell that it did so. It bad frotb (foam) on its nose. Wbeu I was driving, it followed the. cow along just like any calf follows its mother.”

Ernest Mangum testified, so far as material here, as follows: "T saw this calf that this trouble is about in the corral at Henrieville. That was after they had brought the calves up to wean. I first saw it along in the middle of October. . . . Johnny Willis brought this cow and roan calf and put them in the corral at Slick Hock, and then we took them over to Horse Valley corral. . . . When we were driving her, the calf seemed to follow her all the time. The next morning we branded the calf while we had it in the corral. Will Chynoweth branded it in the presence of Johnny Willis, Harvey Chynoweth, and myself. Then we separated the cows and calves and drove the calves over to Hen-rieville.”

Harvey Chynoweth testified that in May, 1910, he and the defendant were moving the defendant’s cattle from the winter to the summer range, and that they had the calf in question and its mother, a cow belonging to defendant, in their actual possession for about ten days; that the calf at that time was about three or four weeks, old. His testimony regarding the branding of the cálf in October was substantially the same as the- testimony given by Willis and Mangum on that point.

The defendant testified:

“I first saw this calf in controvesy ... In May of last year. There was a dark red cow with a brown head with her at that time. That cow belonged to my father and myself. The calf in question was following the cow having our brand. At that time we took the cow and calf to the summer range. We had this cow and calf in our possession about ten days at that time. . . . My brother, Harvey Chyno-weth, Hay Twitchell, and George Baldwin were with me at the timie. . . . Mr. Henderson was on the range, and he came in with us. ... We joined herds. Mr. Henderson’s boys were with him. I had' the roan calf and that cow in my bunch at that time. He cut his cattle out at Pahrea, a couple of miles from tbe old town. He bad been witb us two or three days helping us.”

This evidence is not denied. Henderson was tbe state’s main witness, and was in attendance at court during tbe trial, and was recalled by tbe state after tbe defendant gave bis testimony, and no attempt was made to contradict tbe defendant’s testimony regarding bis possession of the cow and calf on tbe Pabrea. The testimony of the defendant regarding the branding of tbe calf was substantially the same as that given by tbe other witnesses who testified in regard to that transaction.

In the latter part of December, 1910, tbe defendant and bis brother, Harvey Ohynoweth, were arrested for tbe crime charged in tbe information. Soon after they were arrested, they went in search of tbe calf in question and also tbe cow, which they claim is its mother. They employed lames E. Smith and Robert Thompson, both of whom were residents of Henrieville, to assist in hunting tbe cow and tbe calf. James E. Smith testified that they found tbe calf in the Tie Hatch Canyon, grazing witb some six or seven bead of cattle; that tbe Liston cow was not witb tbe calf, but that later on they saw her at tbe Blue Trails, wbicb are about two and one-balf miles from tbe canyon in wbicb they found tbe calf; that they found tbe cow, wbicb tbe defendant and several of bis witnesses claimed to be tbe mother of tbe calf, about thirty miles from Tie Hatch Canyon; that when they toot this cow to tbe place where they were bolding tbe calf witb six or seven other cattle “tbe calf went up to tbe cow and stood by her — followed tbe cow around — stayed close to tbe cow all tbe timethat they drove tbe cow and calf to Hen-rieville, where they were kept by the defendant on bis premises for about two and one-balf months. Tbe testimony of the Chynoweths and Robert Thompson on this point is substantially tbe same as that given by Smith. Pollock, tbe committing magistrate who bound tbe defendant over to answer in tbe district court to tbe charge of grand larceny, examined tbe cow and calf after they were brought to Henrieville, and be testified that “in my honest judgment that was tbe same cow I saw,” referring to the cow that he saw of defendant’s in October, with a “long-eared” calf following her. Regarding the calf, he said: “I couldn’t tell about the calf, because I had not noticed the calf closely. I would naturally suppose the calf belonged to the cow it was following.” Other evidence was introduced by the defendant, which tended t<£ show that his cow was the mother of the calf in question; but we do not deem it necessary to further review the evidence on that point.

It is contended on behalf of the state that the evidence was sufficient to show that the calf in question was the property of Liston, and that it was found in the possession of defend^ ant, and that he failed to make a satisfactory explanation as to how the calf came into- his possession. In their brief counsel say:

“Witnesses on behalf of the state, in rebuttal, testified that John Willis had told them that the defendant had, in substance, said to him, Now, John, I may be accused of stealing this calf, and I am glad that you are here to testify to its mother,’ and that this statement was made at the time the calf was branded.”

The witnesses who so testified on rebuttal were W. J. Henderson and W. W. Littlefield. Harvey Chynoweth and Ernest Mkngum, who were present and assisted the defendant in the branding of the calf, were asked, on cross-examination by the district attorney, whether they heard the defendant make any such remark to Willis, and each of them answered that he did not. The defendant was also- asked, on cross-examination, if he made the remark, and answered, “No, sir.” He admitted, however, that he did say to Willis that he was glad that he (Willis) was along to testify to the mothers of the calves, because “there are always some people who will question the ownership of the calves,” but denied that any special reference was made to the particular calf in question. The testimony of Mangum and John Willis was to the same effect.

W© here remark, parenthetically, that W. J. Henderson, the state’s principal witness — the man who was instrumental in starting criminal proceedings against the defendant for tlie larceny of the calf — owned about 6000 bead of sbeep and about 1000 bead of cattle, all of wbicb be grazed on tbe same range upon wbicb tbe defendant grazed bis cattle. Tbe cross-examination of Henderson showed that be entertained feelings of bitter resentment against tbe defendant. He said in part:

“I bave made tbe threat that I would send this defendant to tbe penitentiary, if it lay in my power. That is tbe way I feel about it. And with that feeling in my heart Myron Willis and I went down there to get evidence (referring to their trip to Tie Hatch Canyon bunting for tbe Liston cow and tbe calf in question). I tried oto.ce before to get evidence to send him to tbe penitentiary. That was down at Kanab. I bave tried ever since.”

For tbe purpose of laying a. foundation to discredit tbe testimony of John Willis, tbe district attorney asked him, on cross-examination, whether or not, in a certain conversation be bad with W. J. Henderson, and in another conversation be bad with W. W. Littlefield, he stated that tbe defendant, at tbe time be branded tbe calf, said to him, “Now, John, I may be accused of stealing this calf,” etc., and be answered that be made no such statement to either Henderson or Littlefield. As stated by counsel for the state in their brief, Henderson and Littlefield were called on rebuttal, and each of them testified that John Willis, at a certain time and place, stated to him that tbe defendant, at tbe time he branded tbe calf, remarked, “John, I may be1 accused of stealing this calf,” etc. Tbe legal effect of this impeaching evidence was to discredit tbe testimony of Willis. It did not tend to prove that tbe defendant made tbe so-called incriminatory remarks mentioned. It merely tended to prove that John Willis bad made statements out of court inconsistent with and contradictory to bis testimony given at tbe trial. Tbe state, however, seems to mainly rely upon this evidence to show that tbe defendant feloniously took possession of tbe calf and appropriated it to bis own use, knowing it to be tbe property of another. But, as we bave stated, it does not tend to establish, that fact. All that can be claimed for it is that it tended to show, and the jury might well have concluded from it, that John Willis was an unreliable witness, and that his testimony was entitled to but little, if any, weight.

The rule is elementary that “what a witness, who* is not a party, states out of court is not evidence in chief to- prove the fact as stated by him, but can only be shown to discredit his testimony at the trial, when his testimony is contradicted by such outside statements. The effect of proving contradictory statements extends no further than the question-of credibility; it does not tend to establish the truth of the matter embraced in the contradictory statements; it simply goes to the credibility of the witness.” (1 Thompson on Trials (2 Ed.), sec. 492.) In 2 Chamber-layne’s Modem Law of Evidence, sec. 1309, the author says:

“It will be further observed in this connection that in the ease of a witness, who is not a party, the alleged inconsistent statement is merely destructive of the evidence given. It is without legal tendency to establish the proposition which the prior statement asserts.”

In 10 Ency. PI. & Pr. 281, it is said:

“A witness may be impeached by proof of verbal statements made by him out of court upon a material point, which are contradictory of his testimony on the trial, though such statements are not admissible as independent evidence upon the merits.” (Italics ours.)

The court did not give, nor was it requested to- give, an instruction limiting the consideration by the jury of the evidence given- by Henderson and Littlefield on rebuttal to the question of credibility of the witness John Willis. The jury, therefore, evidently considered their evidence on rebuttal, not only as bearing upon the question of the weight that should be given to the testimony of Willis, but as piroof that the defendant actually made the alleged incriminating remarks referred to, and that those remarks were sufficient to show a criminal intent on the part of defendant to commit tbe crime charged in the information. Upon no other theory can we account for the verdict of the jury in this case. The failure of the court to limit the consideration of the impeaching testimony by the jury to the purpose for which it was evidently introduced, and the only purpose for which it was admissible, namely, as affecting the credibility of the witness John Willis, is not assigned as error. In fact, error could not be predicated upon the failure of the court to so instruct the jury, because no such instruction was requested by the defendant. In determining the question presented by the assignment of error challenging the sufficiency of the evidence to justify the verdict, we can give effect to such evidence only as bears in some degree upon the issues involving the merits of the case. (State v. Hansen, 40 Utah, 418, 122 Pac. 315.) We have examined the record of the case with more than ordinary care, and we are forced to the conclusion that the evidence, when considered in the light most unfavorable to the defendant, does not justify an inference that the defendant knew, or had reason to believe, at the time he branded the calf in question, that it was not his property. In fact, his entire coui’se of conduct, so far as disclosed by the evidence', from the tin® he took actual possession of the calf until he was tried and convicted, was not only consistent with the theory of innocence, but inconsistent with the theory of guilt. We think the facts in this case bring it within the principle involved in the case of State v. Potello, 40 Utah, 56, 119 Pac. 1023, and upon which that case was ruled.

There are several other errors assigned; but, as they are without merit, we shall not discuss them.

The judgment is reversed, and the cause remanded, with directions to the trial court to grant a new trial.

PRICK, C. J., and STRAUP, J., concur.  