Levi v. State

<p>1. Larceny. — Indictment.—Sufficiency.—An Indictment charging that certain named persons did on a certain date, at a named county in the State, “then and there unlawfully and feloniously take, steal and carry away of the personal goods and chattels of the Wabash Railroad Company, bailee, four thousand five hundred pounds of clover seed, then and there of the aggregate value of six hundred dollars,” was a sufficient charge of grand larceny, p. 190.</p> <p>2. Criminal Law. — Trial.—Absent Witnesses. — Admissibility of Testimony on Former Trial. — Showing of Diligence. — In a prosecution for grand larceny the court erred in permitting the court reporter to read from, her notes the testimony of certain absent witnesses, given by them on behalf of the State at a former trial of the same case, merely on the showing that subpoenas had been issued for such witnesses and had been returned with the indorsement “not found,” where it appeared that the prosecuting attorney knew at the time and prior to the issuance of the subpoenas where such witnesses resided and that they did not reside in the State, that defendant had filed his written consent to taking the depositions of absent witnesses and there was no showing that their evidence was necessary, or of any cause that would have prevented the taking of their depositions, pp. 190, 192.</p> <p>3. Evidence. — Secondary Evidence. — Admissibility.—In order that secondary evidence may be admitted, it is incumbent on the party offering it to show affirmatively the existence of all facts necessary to show it within the exception to the rule against the admissibility of hearsay, p. 191.</p> <p>4. Criminal Law.' — Secondary Evidence. — Admissibility.—Discretion of Court. — The admission of the testimony of an absent witness, given by him on the former trial of a criminal cause, if admissible at all, may be permitted only for the purpose of preventing a miscarriage of justice, where there is a proper showing of circumstances that make it unfair and unreasonable to exclude it, and the question of the necessity of such admission is addressed to the sound legal discretion of the trial court, p. 192.</p> <p>5. Criminal Law. — Misconduct of Prosecutor. — Review).—Where the prosecuting attorney in his closing argument read certain testimony that had been stricken out, and objection thereto was overruled on his statement to the court that the record did not disclose that it had been stricken out, the court erred in thereafter refusing an instruction that such evidence had been stricken out and that it and the prosecutor’s remarks should not be considered by the jury, and in giving instead an instruction stating that it appeared from, the record that the evidence had been stricken out and that the jury should therefore disregard it, and that the reference by counsel for defendant to the fact that the evidence was not furnished by the State was also withdrawn from the jury, since the instruction given was too vague and uncertain, and defendant was entitled to an emphatic instruction that the jury should not consider such evidence and the remarks of counsel thereon, pp. 194,196.</p> <p>6. Appeal. — Misconduct of Counsel. — Presumptions.—On appeal appellee has the burden of showing by the record that no injury resulted from misconduct of counsel before the jury, complained of by appellant, and in the absence of such showing it will be presumed to have been harmful to appellant, p. 196.</p>