People v. Warren

COOPER, C.

The defendants were convicted of grand larceny, in the felonious stealing and driving away of four calves, the property of one Luchessa. They appeal from the judgment and from the order denying their motion for a new trial. During the trial, the court, under defendants’ objection, admitted many conversations and statements of third parties, not made in the presence or hearing of either of the defendants. It will be sufficient to state only a few of such statements, as they are all of the same general character. The prosecuting witness, Luchessa, testified that a short time after he missed his calves, and while riding over the ranch of defendants with two or three other parties, they met one Bob Warren, who rode up in front of them. The district attorney then, asked the following question: “Q. Well, what occurred there, when Bob stopped you?” This question was

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objected to, as incompetent, and not binding upon defendants, as neither of them was present at the time. The district attorney stated that the evidence was admissible for the purpose of showing that a crime was committed by some one, and that he would follow it up and show the connection. The court overruled the defendants’ objection, and the witness testified that Bob Warren rode in front of him, and stopped him, cursing him, and calling him vile names, and among other things, said, “You been sneaking around this ranch long enough.” The witness further testified to meeting Bob Warren on another occasion, and when asked concerning a conversation that took place, defendant objected, upon the ground that the conversation was incompetent, immaterial, and not in the presence of the defendant. The objection was overruled, and the witness was permitted to testify to very abusive language and epithets applied to him by Bob Warren, and that Bob got down off his horse and wanted to fight witness.

Similar rulings were made as to statements and threats in the hearing of the witnesses Mayfield, Van Gordon, and Arbuckle, and not in the presence or hearing of either of the defendants.

The following question was asked by the district attorney of the witness Mayfield: “Q. When you say he abused him, what do you mean by that? What did Bob Warren say, as near as you can recollect?” This question was objected to, as incompetent and hearsay, and the objection overruled. The witness answered: “Called him a son of a b-Swiss, and said he must be up to some meanness, or he would not be there.”