The opinion sufficiently states the case.

Daniel Upthegrove, for the appellant. Thomas Ball, Assistant Attorney-General, for the State.

ECTOR, P. J. The defendant was indicted at the July term, 1877, of the District Court of Hunt County, for offering a bribe to one John Allen, who is alleged to have been a deputy sheriff and jailer of Hunt County, in order to procure the escape of John Williams, who was then confined in jail on a charge of murder. At the January term, 1879, of said court, defendant was tried and convicted; from which judgment he has appealed to this court.

The prosecution first proved that N. J. Ross was sheriff of Hunt County at the time the alleged offense was committed; that he appointed John Allen deputy sheriff and jailer of Hunt County on the 15th of May, 1877, which position he held about four months, during which time he carried the keys of the jail, and had the control and management of the prisoners confined therein, and stayed at the jail. He had John Williams in jail all the time he acted as jailer, on a charge of murder as presented by a bill of indictment. The State also read in evidence the said bill of indictment against John Williams, the capias issued upon it, and the return of the sheriff thereon; the appointment and oath of office of John Allen as deputy sheriff and jailer, duly attested. John Allen, a witness for the State, testified that, while he was in charge of the jail of Hunt County, and had John Williams in custody on the charge of murder, the defendant, a cousin by marriage of Williams, knew the above facts, and had been up to see Williams. Defendant afterwards sent word to him (witness), by Taylor Anderson, to meet him at McDougald's field, about half a mile north of the jail, in Hunt County, Texas. He went according to the request, and a few minutes afterwards the defendant came, in company with Taylor Anderson. Here we give the language of this witness: "When we met we began to talk. The subject was some way to get John Williams out of jail. O'Brien told me he would give me either seventy or seventy-two dollars if I would let John Williams out of jail. I refused to do it, and told him to keep his money. He insisted on my taking the money then, and said he had it in his possession. There was a good deal said about getting John Williams out of jail; the conversation lasted about ten or fifteen minutes."

Taylor Anderson, the next witness introduced on the part of the State, testified that he was present and heard the conversation between the defendant and John Allen, near the corner of McDougald's field. "Don't know who spoke first; the subject of the conversation was, O'Brien was trying to make some arrangement to get John Williams out of jail. I heard O'Brien tell Allen that he had seventy dollars in his

He

possession, or that he had seventy dollars for him; can't say which. Allen did not take the money. I did not see the money. * Allen told O'Brien that Williams knew and understood the matter. also told O'Brien that he would be at the picket gate, and he could get the keys from him by force. And something about Ross being at Rockwall, and Southall out threshing. I don't know whether this was after or before O'Brien told Allen he had the money in his possession. Allen was working to catch O'Brien, and had set a trap for him." The indictment in this case was drawn under article 307 of the Criminal Code. The court, in its charge to the jury, first instructed them: "If any person shall bribe, or offer to bribe, any sheriff or other peace officer to permit any prisoner in his custody to escape, he shall be punished by imprisonment for a term not less than two, nor more than five years.

"2. By a bribe, as used in the section of our statute, as written in the foregoing charge, is meant any gift, advantage, or emolument bestowed for the purpose of inducing such sheriff or other officer to permit any person in his custody to escape.

"3. The word 'sheriff,' as used in this section, and written in first charge, includes the sheriff and his deputies. The word 'peace officer,' as used in the above section, includes sheriffs, their deputies, jailers, constables, marshals of incorporated towns, and persons specially appointed to execute criminal process. Any person appointed by a sheriff as his deputy, and who accepts of said appointment, and enters upon the duties of the office under that appointment, such person is a deputy sheriff, or peace officer, in contemplation of the law, as given in the first charge here given, notwithstanding there may be irregularities in the oath of office of such a deputy; but the deputy must be the same person alleged, and he must be acting for the same principal or sheriff that is alleged in the indictment.

"4. An actual tender of the bribe is not necessary to perfect the crime of offering a bribe, as contemplated by the statute, as given in first charge. Any expression of an ability to produce a bribe, as a gift to an officer to induce him to release a prisoner, is all that is necessary to perfect the crime charged in this bill of indictment.

"5. If any person shall bribe, or offer a bribe to, any sheriff or other peace officer, although such sheriff or other peace-officer should first offer to be bribed by such person, such bribery, or such offer to be bribed, as the case may be, would nevertheless be a violation of the law, as shown in the first section of this charge, and the officer thus offering to be bribed would not be an accomplice, under our statute, to the crime charged."

We believe the law is correctly stated in the first, second, third,

and fourth subdivisions of the charge of the court, but we can not subscribe to the fifth as a correct enunciation of the law. Where the officer first suggests his willingness to a person to accept a bribe to release a prisoner in his charge, and thereby originates the criminal intent, and apparently joins the defendant in a criminal act first suggested by the officer, merely to entrap the defendant, the case is not within the spirit of said article 307 of the Criminal Code. The question here presented is

one of great difficulty, we are free to admit.

After as careful an examination of the authorities at our command as the time at our command and the pressure of business would allow, we have failed to find any adjudicated case which supports the view of the law expressed by the court in the portion of the charge we are now considering. We are inclined to think that the fifth subdivision of the charge of the court is objectionable as being a charge on the weight of evidence, and as calculated to mislead the jury.1

The defendant asked the court to give certain additional instructions to the jury; all of which the court refused to give, except the last. Such of them as were correct enunciations of the law, and applicable to the facts proved, had already been substantially given, and the court was not required to repeat them.

Because of the error in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.

LARCENY-NON-CONSENT OF OWNER MUST BE SHOWN.
STATE V. MOON.

[41 Wis. 684.]

In the Supreme Court of Wisconsin, January Term, 1877.

On a Prosecution for Larceny, the testimony of the owner that the property was taken without his consent, is indispensable to a conviction if he is known and his attendance can be procured.

Certified from the Circuit Court for Buffalo County.

Information for larceny.

The Attorney-General for the State.

No one appeared for the defendant.

LYON, J. The defendant was indicted in the year 1871, for the larceny of a mare. The larceny is alleged to have been committed in 1865.

1 Johnson v. State, 3 Tex. Ct. App. 590; 1 Bish. Cr. L., sec. 570.

In 1876, the defendant was tried and convicted. The circuit judge certified the case to this court, pursuant to the statute,1 and one of the questions submitted for our determination is the following: "Is the evidence given on the part of the prosecution, which tends to show that the mare was stolen in fact—that is, that she was taken against the owner's consent, -sufficient to support the verdict of guilty?" In the view we have taken of the case, it is unnecessary to consider or state the other questions submitted.

The evidence given on the trial is returned here as part of the judge's report; and it appears therefrom that the owner of the mare in question, one Farrington, in the spring of 1865 turned her out in the highway, and allowed her to run at large; that the mare was missing soon after, and the owner made search for her for a time, but failed to find her; that during the same spring, the defendant sold the mare to one Durisch, who kept her until 1869, and then sold her to one Payneborne ; and that Payneborne had her until February, 1871, at which time Farrington brought an action of replevin for her, and prevailed in the action. The defendant lived about twelve miles from Farrington's residence at the time the mare was missing.

The defendant, and two other witnesses produced by him, testified that in the spring of 1865, Farrington came to the defendant's residence in search of a stray mare; that the mare in question, which had strayed on the defendant's premises a few days before, was pointed out to him, and he claimed her as his mare; and that thereupon the defendant purchased her of Farrington, and paid him the agreed price-the object of the purchase being to secure a match for another horse owned by the defendant. Farrington was not produced as a witness. The evidence is, that at the time of the trial he still resided where he did when it is alleged he lost the mare; but that he went to Kansas some time during the preceding month, and had not returned when the trial took place.

The foregoing is all the testimony in the case showing, or tending to show, that the mare was taken without the consent of the owner, or that the attendance of the owner as a witness at the trial could not be procured.

In State v. Morey,2 it was held that in a prosecution for larceny, if the owner of the property alleged to have been stolen is known, and his attendance as a witness can be procured, his testimony that the property was taken from him without his consent is indispensable to a conviction. This is upon the principle that his testimony is the primary and best evidence that the property was taken without his consent, and hence, that secondary evidence of the fact can not be resorted to, until

1 Rev. Stats., ch. 120, sec. 8.

2 2 Wis. 494.

the prosecution shows its inability, after due diligence, to procure the attendance of the owner.

If the property be taken from the immediate possession of an agent or bailee, of the owner, probably the testimony of such agent or bailee showing non-consent would answer the requirement of the rule. This, however, is not such a case.

In the present case, the secondary evidence of the non-consent of the owner is very weak. The prosecution failed to prove that he made the slightest effort to find his mare after the time the defendant and his witnesses testify that he sold her to the defendant, until he replevied her from Paynborne, nearly six years afterwards; and the proof is, that during all that time she was kept and used within a few miles of the residence of the owner, and was frequently driven into his neighborhood, and sometimes past his residence.

Moreover, the prosecution has failed to show the slightest diligence to procure the attendance of the owner as a witness. It does not appear but that a simple request, either orally or by letter, would have secured his attendance. Had the case been continued for a term (and his absence after due diligence to secure his attendance would have been good cause for a continuance), it is quite probable that his attendance could have been procured. In short, it does not appear that the prosecution was unable to secure the attendance of the owner of the mare as a witness.

In view of the very weak and unsatisfactory character of the secondary testimony of the owner's non-consent, this seems to be a very proper case for the application of the rule laid down by Chief Justice Whiton in State v. Morey.1 And because it does not appear that the testimony of the owner could not have been obtained, we must hold that the secondary evidence that the mare was taken against the consent of the owner, if admissible at all, was entirely insufficient to uphold a verdict of guilty. We therefore answer the above question in the negative.

The defendant has been tried for the offense charged in the indictment, and was entitled to an acquittal. To try him again would be to put him twice in jeopardy of punishment for the same offense, which would be a violation of a great constitutional right.3 Hence we advise the Circuit Court to arrest judgment and discharge the defendant.

1 Supra.

2 See cases in Cowen & Hill's notes to

Phillips on Ev. (4th Am. ed.), by Edmonds, 635.

3 Const. Art. I., sec. 8.