People v. Tallmadge

McFarland, J. The appellant was charged with the larceny of a number of hogs, the property of one Bertch, and was convicted of grand larceny. He moved for a new trial, and the motion was denied; and from the judgment and the order denying a new trial he appealed.

The only point pressed by appellant is that the court erred in not granting a new trial upon the ground of newly discovered evidence. One Harry Lynde was a principal witness against the appellant, and was, according to his testimony, an accomplice. He testified that, on or about the 15th of November, at 9 or 10 o’clock at night, he, in company with the appellant, visited the ranch of said Bertch, and drove out of the field twenty-one or twenty-two hogs, and took them a few miles to a place where they were corralled that night; that the next night they drove them to a place called Armona, reaching the latter place about 3 or 4 o’clock in the morning, where the hogs were corralled; that on Sunday morning they loaded them into two wagons belonging to the appellant, from which place they were hauled in said wagons to various places throughout the country and sold. There was a great deal of other testimony tending to connect the appellant with the larceny of said hogs, and corroborative of the testimony of said Lynde. It was proven by other witnesses that appellant sold portions of the hogs at various places, and he admits that he did so sell them, his explanation being that he was hired by the said Lynde to haul said hogs from Armona, that he did not know or have any reason to believe that they were stolen, and that after he left Armona, and before he sold any of the hogs, he purchased the same from the said Lynde, giving him a certain sum of money, and agreeing to pay the balance at a future time. On the motion for a new trial there was presented an affidavit made by the said Lynde, in which he testified that the testimony which he had given on the trial against appellant was willfully false, that appellant did not participate in the larceny of the hogs, and did not know that they had been stolen, and [430]that he, Lynde, and another person called Epperson, had committed the larceny. He gave as the reason for swearing falsely at the trial that the district attorney and the deputy sheriff had told him that they disliked Tallmadge, and that if he, Lynde, would stand in and help to convict him by swearing that Tallmadge was with him and helped steal the hogs, the charges against Lynde would be dismissed; and further, that the deputy sheriff promised him that he would also give him, if he would so testify, two hundred dollars, and that since then the said deputy sheriff had refused to pay him the said sum of money, or any part thereof. These statements as to the district attorney and the deputy sheriff were entirely denied by said deputy sheriff and district attorney in affidavits filed on the motion.