error. It is apparent, from an examination of the record herein, that the state attempted to supply such omission on the second trial. In doing so it was disclosed that the book was not one of original entries, and was therefore not the best evidence. The failure to produce the original entries, or in other words, the best evidence, was not explained, and the witness who copied such original entries into the book in question did not even testify that they were correct. So it is clear that the admission of this evidence was reversible error.

Plaintiff further complains of certain instructions given by the court on his own motion. It is said that although it was not reversible error to give either of the instructions numbered 8 and 9, yet the giving of both of them grouped together was prejudicial to the plaintiff. Both of these instructions define and explain a reasonable doubt. It is apparent that either one of them would have been sufficient, and that one is practically a repetition of the other.

held, in several cases, that it is not reversible error to repeat an instruction unless it appears that such repetition might operate to the prejudice of the accused. Yet, we are frank to say that we are unable to commend such a course.

It is further contended that the court erred in giving instruction No. 10, on his own motion. This instruction 268 concludes with the words: "You are not required to receive blindly the testimony of such accused person as true, but you are to consider whether it is true and made in good faith, or only for the purpose of avoiding conviction." It is urged that it was reversible error for the court to thus suggest to the jury that the testimony of the defendant may have been given for the purpose of avoiding a conviction; and that this suggestion was calculated to disparage the testimony of the accused. The case of Clark v. State, 32 Neb. 246, 49 N. W. 367, is cited in support of this contention. In that case it was held that, "where a person on trial for a crime testifies in his own behalf, the court may instruct the jury that in weighing his testimony they may consider his interest in the result of the suit. The court, however, cannot, by repeating its statement in that regard, give it undue weight or say aught calculated to disparage the testimony of the accused." The state, to support the instruction, cites the case of Carleton v. State, 43 Neb. 373, 61 N. W. 699, where the trial court charged the jury as follows: "The jury are instructed that they have no right to disregard the

269

testimony of the defendant on the ground alone that he is a defendant and stands charged with the commission of a crime; nor are the jury required to blindly receive the testimony of the defendant as true, but the jury are to fully and fairly consider whether it is true and made in good faith, and for this purpose the jury have a right to consider the interest of the defendant in this prosecution. The law presumes the defendant to be innocent until he is proved guilty by the evidence beyond a reasonable doubt, and the law allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony together with all the other evidence in the case, and if from all the evidence, the facts and circumstances proved, the jury have any reasonable doubt of the guilt of the defendant as charged in the information, then the jury should give the defendant the benefit of the doubt and acquit him." The court after much discussion, in which it was said that "true" and "made in good faith" were synonymous terms, reluctantly approved of the foregoing instruction; but it will be observed that the instruction complained of, in this case, is much broader in its terms, goes further and is more prejudicial to the accused than the one above quoted. In that instruction it was not suggested that the testimony of the accused might have been given in bad faith, and for the purpose of avoiding a conviction, while this one goes to that extreme length. We are unwilling to go any further in approving instructions of this kind than the rule announced in the Carleton case (43 Neb. 373, 61 N. W. 699). No case has been called to our attention, and we have not been able to find one which seems to justify us in so doing. Indeed. common experience teaches us that juries are prone to view the evidence of one who is on trial for a criminal offense with suspicion, and the court should not, by his conduct or instructions, in any manner disparage the evidence of the accused.

It is further contended that the court erred in receiving the testimony of the state's witnesses by which it was sought to prove confessions of guilt on the part of the plaintiff in error. It is unnecessary to determine this question, for the reason that the judgment must be reversed and a new trial granted on account of the matters herein before considered. It may not be amiss, however, to say that it is the duty of the state when offering witnesses to prove the confessions or

admissions of a person charged with crime, to fully qualify its witnesses by showing that such confessions or admissions were made voluntarily, in such a manner and under such circumstances as to make them competent evidence; that it is no part of the duty of the accused or his counsel to supply the element of competency by a cross-examination of the witnesses or otherwise.

For the foregoing reasons, we hold that the court erred in the admission of exhibit "D" in evidence, and in giving instruction numbered 10 to the jury on his own motion. The judgment of the district court is therefore reversed, and the cause is remanded for a new trial.

Records of Entries Made in the Usual Course of Business on "train sheets" by a train dispatcher from reports telegraphed to him by station agents as to the arrival and departure of trains, are admissible in evidence to show the position and place of a train at a certain time: Fireman's Ins. Co. v. Seaboard Air Line. Ry., 138 N. C. 42, 107 Am. St. Rep. 517. And the trip report of a street-car conduetor, showing the number of passengers on a certain trip and that they paid cash fares, is admissible in evidence against one who claims to have been a passenger, under a transfer slip, on that trip and negligently injured: Callihan v. Washington Water Power Co., 27 Wash. 154, 91 Am. St. Rep. 829.

LAMB v. ROONEY.

[72 Neb. 322, 100 N. W. 410.]

ELECTION OF REMEDIES-When not Conclusive.—If, in attempting and designing to make an election, one does an act or com mences an action in ignorance of substantial facts which proffer an alternate remedy, and the knowledge of which is essential to an intelligent choice of procedure, he may, when informed, adopt a different remedy. (p. 796.)

TRUST-Stolen Property.-The Conventional Relation of trustee and cestui que trust, or other fiduciary relation, is not essential to the jurisdiction of a court of equity to declare and enforce a trust with respect to property stolen from the beneficial owner. (p. 797.)

T. J. Doyle and H. C. Vail, for the plaintiff in error.

James R. Swain and Abbott & O'Malley, for the defendants in error.

323 OLDHAM, C. The facts underlying this controversy are, that on the twenty-second day of April, 1902, Harry

Hill and Verne Stewart stole and drove away from a herd of cattle owned by plaintiffs ten head of steers which they delivered to defendant Michael Lamb, who intermingled the stolen cattle with fifteen head of his own and shipped the same to South Omaha, Nebraska, where they were sold to the commission firm of Ralston & Fonda, the proceeds of sale amounting to $1,800; $830 of the proceeds of the sale of this carload of cattle were invested in forty-nine head of yearling steers by defendant Lamb, and the cattle purchased were shipped to his ranch in Greeley county, Nebraska. Sulsequently the defendant Lamb was arrested on a criminal warrant and charged with aiding and abetting the larceny of the cattle and with receiving the stolen cattle, knowing the same to have been stolen. He was convicted of this criminal charge in the district court for Greeley county, Nebraska, and sentenced to the penitentiary for a term of nine years. The judgment of the district court was subsequently affirmed by the court in the case of Lamb v. State, 69 Neb. 212, 95 N. W. 1050. Shortly after the larceny of plaintiff's cattle they began an action against the defendant Lamb to recover the value of the stolen cattle and procured an attachment to issue and levied the same upon the cattle now in dispute. 324 Subsequently, the attachment proceeding was dismissed by plaintiff and the instant case, a bill in equity to impose a resulting trust on the forty-nine head of cattle purchased from the proceeds of the sale of the cattle stolen from plaintiffs, was instituted. Issues were properly Joined on the petition in the court below, and a trial had to the court, which resulted in a judgment for plaintiffs and a decree quieting title to the forty-nine head of cattle in dispute in plaintiffs. From this judgment and decree, the defendant brings error to this court.

The first contention urged for a reversal of the cause is, that the plaintiffs, by instituting suit against the defendant to recover the value of the property stolen, and having an attachment issued, elected to treat the cattle as the property of the defendant, and that, having so elected, they are now estopped by this act from claiming the equitable title to the cattle in dispute. There are two sufficient answers to this contention: The first is, that by instituting a suit at law against the defendant for the recovery of the value of the cattle alleged to have been stolen, plaintiffs by this act did not elect to declare that the defendant was the owner of any

particular property. Nor did they by this act disaffirm their title to the property stolen by the defendant, nor their right to trace the proceeds of such property when reinvested and have a trust declared therein. And again it clearly appears from the testimony that at the time the attachment proceeding was instituted, plaintiffs had no knowledge of the fact that the forty-nine head of cattle now in dispute had been purchased from the proceeds of the sale of their cattle. In Pekins Plow Co. v. Wilson, 66 Neb. 115, 92 N. W. 176, this court said that, "If in attempting and designing to make an election, one puts forth an act or commences an action in ignorance of substantial facts which proffer an alternate remedy, and the knowledge of which is essential to an intelligent choice of procedure, his act or action is not binding. He may, when informed, adopt a different remedy."

The next question urged is as to the sufficiency of the 325 testimony to impress a resulting trust in favor of plaintiffs on the cattle in dispute. The evidence as to the larceny of the cattle and defendant Lamb's participation therein was the same in the case at bar as it was in the criminal proceeding, and we may say that, in full compliance with all rules of evidence, this fact has been fully established. That a thief who steals the property of another and changes its form by reinvestment is a trustee ex maleficio of the owner of the property is well established in this state, and as was said by Post, C. J., in Nebraska Nat. Bank v. Johnson, 51 Neb. 546, 71 N. W. 294: "The conventional relation of trustee and cestui que trust, or other fiduciary relation, is not essential to the jurisdiction of a court of equity to declare and enforce a trust with respect to the property stolen from the beneficial owner."

Then the question to be determined is: How much, if any, of the proceeds of the cattle stolen from plaintiffs have been traced by the testimony in the record to the purchase of the cattle in dispute? The evidence shows that before the theft of the cattle the defendant had a small balance of about $76 in the Spaulding State Bank; that after the sale of the carload of cattle at South Omaha, defendant deposited in this bank a draft on the Packers' National Bank of South Omaha for $1,589.92; that from the moneys so deposited in the Spaulding bank he purchased a draft of $555.93, which was applied as payment of a part of the