The weekly tribune., 1894-05-18
THE CELEBRATED COW CASE.
For the Second Time Robert English
Will Be Released from Prison
to Stand Trial for
Stealing a Cow for Which He Has
Been Tried Five Times In
the District Court.

On Monday the state supreme court
handed down decision ordering a new
trial in the case Of the State vs. Robert
English charged with stealing COW and
for which offense he has been tried five
times in the district court Of Cascade
county. On the third trial be was con.
victed and sentenced to five years in the
penitentiary. After serving several
months the supreme court ordered
new trial and English was returned to
Cascade county. At the March term OF
the district court he underwent the or.
deal OF two trials "a sick juryman
necessitating the calling in of another
juryman and the reading of the evidence
to him as far as the trial had progressed.
English was convicted and Judge Benton
sentenced him on the 18th of March 10
one year in the penitentiary and to pay a
fine OF $2CO, and he has been In the pen.
ever since the sentence. The case was
again taken up to the supreme court by
bis attorneys, Messrs. Bishop & Martin,
and on Monday the court handed dow
a unanimous opinion reversing the jude
ment Of the lower court and remandinp
English back to the district court q
Cascade county for new trial.
The case has already cost the tax
payers OF Cascade county nearly e3,5OI
and the end is not yet. The following nj
a synopsis OF the opinion OF the supreu
court:
The defendant appealed from the JUDI
ment convicting him Of the crime Of lai
ceny Of one COW. The defendant WA
tried upon plea Of not guilty, and also
upon the plea of autre fois acquit. The
defendant and Leslie Dewitt were
charged with stealing COW belonging to|
L. Wa.deland. They were also charged
with stealing a steer belonging to Chas
Carthae. English was tried for the OF.
fence Of stealing the steer, and was duly
acquitted. He was then tried on the
other information for stealing the COW,
and was convicted. 1t is from the judQ
ment on this conviction that he now an
peals.
The acquittal on the charge OF steal.
ing the steer is what the defendant
claimed as former acquittal which
barred this prosecution. His argument
proceeds upon tho theory that the tskins
of the steer and the COW was one act
and therefor there could be but one
prosecution. On the trial of this in.
formation the evidence as to the taking
OF the animals was to the effect that DE
Witt and this defendant first cut out the
steer from Carthae's herd, drove Il away
some distance and left It; that sbou,
half an hour afterwards they went 10
the herd Of Waldeland, from half mile
to mile distance, and took the COW
mentioned in the information, drove her|
to where they mad left the steer, and
then drove them both away. We are ID
the opinion that they were clearly twdI
acts and two offenses in these transact
ions.
Defendant also makes the contentiod
that the judgment upon the tlial fo|
stealing the steer is res adjudicata ID
this, that the only defense made upod1
the trial was an abb; that the defend
ant being acquitted it is res adjudicats
that he was not present when the stee
was stolen, but that the evidence in thi
case shows that the steer and COW wer
stolen together, and therefore it was es
tablished as res adjudicata that defend
ant was not present when the COW wa
stolen. But we have heretofore show
that the atealing Of the steer and col
we're two otfenses, committed at differeu
times and places. The defendant, undo
the circumstances appearing, was nd
necessarily absent from the one stealini
because he was absent from the othe
1t scenes, upon the argument Of thl
case, that Leslie De Witt, the associai, \
OF defendant in these transactions, bsy
before the trial Of this cause, been CO
victed and sentenced for his particir
tion in these events. On this trial I.
c1urt, over the objection of defendant
admitted in evidence testimony Of tha1
confessions made by Dewitt, implicai
ing him and defendant in the stealing
the COW. 1t is clear from the testimoD
that these confessions were not made
the presence OF defendant, nor ::wer
they made during the pendency OF tn
commission Of the larceny, nor in it's ful
therance; nor were they part of the rel
gestae. They were simply narratlons b!
Dewitt, after the larceny was completed
OF the events which were past and accom-
plished Under such circumstances tn
confessions Of an accomplice, OF .'of oned
two persons charged with a crime, cal
be used as against the confessing perso
only. In the case at bar they were usei
as against the other person only. Tbi
was an error. This is elementary, AM
ancient, and modern law. And is just
1t is matter Of regret that prosecut
ing attorneys should insist upon, and thl
trial court permit, the introduction
illegal evidence, which must result In tn
reversal Of cases, when such errors coul
be so easily avoided by little reflection
and research Of the authorities. Th
judgment is reversed, and the case is ro