State v. Taylor

The opinion of the court was delivered by Brewer, J.:

Defendant was convicted in the district court of Davis county of the crime of grand larceny, and sentenced to the penitentiary for a term of three years. From this he has appealed to this court. A single matter only requires notice, for in that we find a fatal error. The information charged the larceny of certain cattle belonging to Michael Wandler. The evidence showed that the property belonged to J. M. Wandler, and there is nothing in the evidence, as preserved in the record, to show that Michael and J. M. Wandler are one and the same person. The only thing in the record bearing upon this is the recitation of what took place in the opening of the trial as follows: “The county *422 attorney first, called Michael Wandler, who having answered and taken the stand was duly sworn, * * * testified as follows: My name is J. M. Wandler.” From this counsel argues that as the witness who testified that his name was J. M. Wandler answered when Michael Wandler was called, the jury had sufficient evidence to justify them in finding that J. M. W. and Michael W. were one and the same person. Counsel says that other things equally significant took place during the trial, which do not appear in the record; but of course we must take the record as it is. And there is not enough in it to sustain the verdict. The testimony of the witness was, that his name was J. M. Wandler, and there was no testimony tending to show that he was ever known by any other name. His answering to the call of Michael Wandler, and coming on to the witness stand in obedience thereto", took place before he was sworn; and a jury may not • bridge a variance between the charge and the testimony by inferences from the conduct of an unsworn witness. His conduct before he was sworn, is no more evidence than his statements would have been; and it would not seriously be contended that a jury might rest their verdict upon the statements of a witness prior to his being sworn. It may be that this was an inadvertence in the trial, or an oversight in preparing the record; and it may also be that the owner was not Michael Wandler, but an entirely different person, named J. M. Wandler.

The judgment will be reversed, and the case remanded for a new trial. The appellant will be returned from the penitentiary to the jailor of Davis county, to abide the further order of the district court of that county.

All the Justices concurring.