“The order in which evidence is to be received, the recalling of witnesses to the witness stand ... and the acceptance or rejection of rebuttal testimony are matters which are necessarily committed to the broad discretion of the trial court, the exercise of which will not be disturbed upon appeal in the absence of a clear showing of abuse.”
How later courts described this case
- “The order in which evidence is to be received, the recalling of witnesses to the witness stand ... and the acceptance or rejection of rebuttal testimony are matters which are necessarily committed to the broad discretion of the trial court, the exercise of which will not be disturbed upon appeal in the absence of a clear showing of abuse.”
Written by the judges who cited it.
The opinion
HUTCHESON, Chief Judge (dissenting).
Of the clear opinion; that appellant’s motion to dismiss the indictment because it alleged disjunctively instead of con-junctively that the property in question “had been stolen, converted or taken by fraud” was well taken; and that the indictment should have been dismissed on that ground I dissent from the judgment of affirmance.
The majority opinion concedes that if appellant had been charged with stealing, converting or taking the jewelry the motion to dismiss should, under the authorities cited in note three, have been sustained. The majority, by a process of reasoning however which seems fallacious to me, reaches the conclusion that the rule which would admittedly apply if appellant had been indicted as the taker does not apply here because he is charged with transportation of the property after it had been taken and what was an essential element in the offense if he had been the taker, the manner in which it was taken, becomes to quote from the majority opinion “a subsidiary element of the offense.”
Because I am unfamiliar with this use of the term subsidiary in connection with the elements of an offense, I am not sure that I understand the meaning and significance of the word when so used. I suppose though it is used in contradistinction to essential to mean that it is an unessential element of the offense charged.
If I am correct in this we are presented with what seems to me to be quite an anomaly in the law of criminal pleading that what would be an essential element of the offense if the taker had been charged with the offense of taking ceases to be an essential element when the taker is not charged but only the transporter is.
With the greatest deference to the contrary opinion of my brothers the conclusion on which it rests seems to be a triumph of form over substance, of technicality over sound reason.
To recapitulate, to my brothers the offense denounced by the statute, transporting in foreign commerce property which had theretofore been stolen, converted or taken by fraud as he at the time of transporting said merchandise as aforesaid well knew consists of two elements, one the transportation, and two, the unlawful taking of the property, these two elements stand in the order of principal and subsidiary and only the principal element transportation need be alleged and proven.
To me both elements are essential. Both must be properly alleged and proven.
For the failure to properly allege the element of unlawful taking, I think that the motion to dismiss should have been sustained and that because it was not the judgment should be reversed. I, therefore, dissent from the opinion and judgment of affirmance.