PLAINTIFF in error, to whom we hereinafter refer as defendant, was found guilty by a jury in the district court of Teller county, of the larceny of fourteen head of neat cattle of the personal property of one Sumner Osborne, in violation of section 93, chapter 48, '35 C.S.A., and he is here seeking a reversal of the judgment of conviction which followed such verdict. The evidence of the people, which in the particulars hereinafter set out is uncontroverted, disclosed that on the morning of October 23, 1941, defendant and his brother John Cahill went to what is referred to in the evidence as the Sumner Osborne ranch, situate in Teller county, and drove fourteen head of cattle which were grazing thereon to a small pasture near defendant's ranch in the neighborhood of Divide. There was no evidence that the Cahills had or claimed any ownership in, or right of possession to, such livestock. Eleven of these cattle were branded with a backward P inverted U brand and the remaining three with a K Bar backward C brand. Previous to 1937 the first brand was duly recorded in the name of Earl Osborne — deceased in 1940 — a brother of Sumner Osborne; by reason, however, of default in the payment of the brand assessment in 1937 (§ 17, c. 160, '35 C.S.A.), such brand was dropped from the records but never was recorded as belonging to any other person. The K Bar backward C brand was recorded as that of Fannie Osborne, the mother of Sumner Osborne.
After placing the cattle in the pasture last mentioned, the two Cahills, accompanied by one Betts who testified for the people, drove to Denver in defendant's truck where in a brand book there procured, defendant checked up on the P inverted U brand. As would be accounted for by the assessment default we have mentioned, defendant was unable to find this brand recorded to Earl Osborne or anyone else. The three immediately returned to the place where the cattle had been left, drove them to defendant's ranch, loaded them in his truck and proceeded to the Denver Stock Yards where they arrived about 1 o'clock a.m. on the 24th. On the way, at defendant's direction, Betts fabricated a bill of sale for a portion of the cattle from Fannie Osborne to Earl Osborne, to which he forged Fannie Osborne's name. Upon reaching the stock yards they consigned the cattle to Drinkard Emmert, commission merchants, in the name of Earl Osborne. Defendant and his associates then retired to a hotel where they registered under assumed names. The next day they went to the office of Drinkard Emmert and secured the proceeds from the sale of the cattle in the form of a check for $545.35 payable to Earl Osborne. By forging the endorsement of Earl Osborne thereon the Cahills procured cash in the amount stated, which was divided between them. The two Cahills were arrested on October 30, 1941, in Colorado Springs, and at the request of the sheriff of Teller county were incarcerated in the El Paso county jail until November 19, 1941, when they were removed to Cripple Creek. It further appeared from the evidence that Sumner Osborne, the alleged owner of the cattle involved, disappeared from his usual place of abode about October 17, 1941, and still was missing at the time of the trial. It may be inferred from the record that at one time defendant was suspected of being implicated in Osborne's unexplained disappearance.
[1, 2] As one ground for reversal defendant contends that the evidence was insufficient to prove the ownership
and possession by Sumner Osborne of the cattle on October 23 as alleged in the information. In this connection it is argued that the circumstance that the brands borne by these cattle were recorded to Earl and Fannie Osborne is prima facie proof under our statute (section 10, chapter 160, '35 C.S.A.), that they, and not Sumner, were the owners of the cattle. While, as contended, a recorded brand is prima facie evidence of the ownership of the animals so branded, it is well established that it is not conclusive of such fact. Howry v.Sigel-Campion Co., 80 Colo. 143, 249 Pac. 658. Herein it was shown that for many years Earl and Sumner had been partners in the livestock business using the backward P inverted U brand; that the partnership was terminated in 1938 and thereafter Earl had given Sumner a bill of sale for all cattle bearing such brand. It also was testified that several years prior to the trial Fannie Osborne likewise had given Sumner a bill of sale for all cattle bearing her brand. At least two witnesses testified unequivocally that the cattle sold by defendant were owned by Sumner and were in his possession in September and October, 1941. A number of other witnesses for the people testified on direct examination that the cattle involved belonged to Sumner and in the summer and fall of 1941 were in his possession at the ranch from which they were driven by defendant and his brother. On cross-examination some of the latter group of witnesses admitted some uncertainty as to whether the cattle were owned by Sumner individually or jointly with his mother or brother. Obviously, such indecision on the subject of the legal ownership of the cattle as was exhibited by these witnesses went to the weight to be given their testimony by the jury and could have no greater legal consequence. In these circumstances we have no doubt the evidence was sufficient to sustain a jury finding that the presumption of ownership arising from the recorded brands had been overcome, and to conclude that Sumner was the owner of the cattle in
question. There is no merit in the contention that the proof was insufficient to convict, upon the theory that because Sumner had disappeared prior to October 23, the alleged date of the larceny, he thus could not have been deprived of the immediate possession of the cattle on the day alleged. It is elementary that notwithstanding an actual want of custody of a chattel allegedly stolen, the possession thereof, in contemplation of law, remains in the person last in actual possession until he has abandoned it or parted with it to someone else. 36 C. J., pp. 757, 758, §§ 79, 80. There is no suggestion in the evidence that in any legal sense Sumner abandoned these cattle or gave their possession to any other person.
[3] The court refused to give an instruction tendered by defendant reading: "That it is necessary for the prosecution to prove by the evidence beyond a reasonable doubt, as in these instructions defined, the ownership of the cattle as charged in the information, and that if the prosecution fails to so convince you, you shall find the defendant not guilty." Error is assigned to this ruling. Given Instruction No. 5 specifically detailed all of the elements of the crime charged including the essentialities of ownership and possession, and as a condition to conviction required proof thereof beyond a reasonable doubt. Having so generally instructed the jury concerning all the requisite components of the offense, it was not incumbent on the court to instruct specifically as to one of them alone. Grandbouche v.People, 104 Colo. 175, 89 P.2d 577; Henwood v.People, 57 Colo. 544, 143 Pac. 373, Ann. Cas. 1916 A, 1111.
[4] In informing the jury of the definition of the criminal act charged, the court used the precise language of section 93, chapter 48, supra.
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PLAINTIFF in error, to whom we hereinafter refer as defendant, was found guilty by a jury in the district court of Teller county, of the larceny of fourteen head of neat cattle of the personal property of one Sumner Osborne, in violation of section 93, chapter 48, '35 C.S.A., and he is here seeking a reversal of the judgment of conviction which followed such verdict. The evidence of the people, which in the particulars hereinafter set out is uncontroverted, disclosed that on the morning of October 23, 1941, defendant and his brother John Cahill went to what is referred to in the evidence as the Sumner Osborne ranch, situate in Teller county, and drove fourteen head of cattle which were grazing thereon to a small pasture near defendant's ranch in the neighborhood of Divide. There was no evidence that the Cahills had or claimed any ownership in, or right of possession to, such livestock. Eleven of these cattle were branded with a backward P inverted U brand and the remaining three with a K Bar backward C brand. Previous to 1937 the first brand was duly recorded in the name of Earl Osborne — deceased in 1940 — a brother of Sumner Osborne; by reason, however, of default in the payment of the brand assessment in 1937 (§ 17, c. 160, '35 C.S.A.), such brand was dropped from the records but never was recorded as belonging to any other person. The K Bar backward C brand was recorded as that of Fannie Osborne, the mother of Sumner Osborne.
After placing the cattle in the pasture last mentioned, the two Cahills, accompanied by one Betts who testified for the people, drove to Denver in defendant's truck where in a brand book there procured, defendant checked up on the P inverted U brand. As would be accounted for by the assessment default we have mentioned, defendant was unable to find this brand recorded to Earl Osborne or anyone else. The three immediately returned to the place where the cattle had been left, drove them to defendant's ranch, loaded them in his truck and proceeded to the Denver Stock Yards where they arrived about 1 o'clock a.m. on the 24th. On the way, at defendant's direction, Betts fabricated a bill of sale for a portion of the cattle from Fannie Osborne to Earl Osborne, to which he forged Fannie Osborne's name. Upon reaching the stock yards they consigned the cattle to Drinkard Emmert, commission merchants, in the name of Earl Osborne. Defendant and his associates then retired to a hotel where they registered under assumed names. The next day they went to the office of Drinkard Emmert and secured the proceeds from the sale of the cattle in the form of a check for $545.35 payable to Earl Osborne. By forging the endorsement of Earl Osborne thereon the Cahills procured cash in the amount stated, which was divided between them. The two Cahills were arrested on October 30, 1941, in Colorado Springs, and at the request of the sheriff of Teller county were incarcerated in the El Paso county jail until November 19, 1941, when they were removed to Cripple Creek. It further appeared from the evidence that Sumner Osborne, the alleged owner of the cattle involved, disappeared from his usual place of abode about October 17, 1941, and still was missing at the time of the trial. It may be inferred from the record that at one time defendant was suspected of being implicated in Osborne's unexplained disappearance.
[1, 2] As one ground for reversal defendant contends that the evidence was insufficient to prove the ownership
and possession by Sumner Osborne of the cattle on October 23 as alleged in the information. In this connection it is argued that the circumstance that the brands borne by these cattle were recorded to Earl and Fannie Osborne is prima facie proof under our statute (section 10, chapter 160, '35 C.S.A.), that they, and not Sumner, were the owners of the cattle. While, as contended, a recorded brand is prima facie evidence of the ownership of the animals so branded, it is well established that it is not conclusive of such fact. Howry v.Sigel-Campion Co., 80 Colo. 143, 249 Pac. 658. Herein it was shown that for many years Earl and Sumner had been partners in the livestock business using the backward P inverted U brand; that the partnership was terminated in 1938 and thereafter Earl had given Sumner a bill of sale for all cattle bearing such brand. It also was testified that several years prior to the trial Fannie Osborne likewise had given Sumner a bill of sale for all cattle bearing her brand. At least two witnesses testified unequivocally that the cattle sold by defendant were owned by Sumner and were in his possession in September and October, 1941. A number of other witnesses for the people testified on direct examination that the cattle involved belonged to Sumner and in the summer and fall of 1941 were in his possession at the ranch from which they were driven by defendant and his brother. On cross-examination some of the latter group of witnesses admitted some uncertainty as to whether the cattle were owned by Sumner individually or jointly with his mother or brother. Obviously, such indecision on the subject of the legal ownership of the cattle as was exhibited by these witnesses went to the weight to be given their testimony by the jury and could have no greater legal consequence. In these circumstances we have no doubt the evidence was sufficient to sustain a jury finding that the presumption of ownership arising from the recorded brands had been overcome, and to conclude that Sumner was the owner of the cattle in
question. There is no merit in the contention that the proof was insufficient to convict, upon the theory that because Sumner had disappeared prior to October 23, the alleged date of the larceny, he thus could not have been deprived of the immediate possession of the cattle on the day alleged. It is elementary that notwithstanding an actual want of custody of a chattel allegedly stolen, the possession thereof, in contemplation of law, remains in the person last in actual possession until he has abandoned it or parted with it to someone else. 36 C. J., pp. 757, 758, §§ 79, 80. There is no suggestion in the evidence that in any legal sense Sumner abandoned these cattle or gave their possession to any other person.
[3] The court refused to give an instruction tendered by defendant reading: "That it is necessary for the prosecution to prove by the evidence beyond a reasonable doubt, as in these instructions defined, the ownership of the cattle as charged in the information, and that if the prosecution fails to so convince you, you shall find the defendant not guilty." Error is assigned to this ruling. Given Instruction No. 5 specifically detailed all of the elements of the crime charged including the essentialities of ownership and possession, and as a condition to conviction required proof thereof beyond a reasonable doubt. Having so generally instructed the jury concerning all the requisite components of the offense, it was not incumbent on the court to instruct specifically as to one of them alone. Grandbouche v.People, 104 Colo. 175, 89 P.2d 577; Henwood v.People, 57 Colo. 544, 143 Pac. 373, Ann. Cas. 1916 A, 1111.
[4] In informing the jury of the definition of the criminal act charged, the court used the precise language of section 93, chapter 48, supra. This, defendant asserts, was erroneous in that the language of the statute contains the words "embezzle" * * *, "sell," * * * "or in any manner unlawfully deprive the owner of the immediate possession" of any cattle, which terms
were not included in the information. It is argued that from the use of the language of the statute itself the jury may have found defendant guilty under circumstances not charged in the information. This point is not well taken. By Instruction No. 1 the jury was given verbatim the charge as contained in the information, and Instruction No. 5 again reiterated the precise elements of the offense as alleged. "As a general proposition the objection that instructions were given in the language of the statute is not tenable." Kent v. People,8 Colo. 563, 9 Pac. 852. "When the offense is statutory it is generally proper and sufficient to give the definition in the language of the statute." 23 C.J.S., p. 742, § 1194. See, also,Militello v. People, 95 Colo. 519, 37 P.2d 527, andMedberry v. People, 107 Colo. 15, 108 P.2d 243. In the circumstances here we perceive nothing which takes the case from the purview of the general rule. While the inclusion verbatim of inapplicable subdivisions of statutes in instructions to a jury was said to be improper, in the opinions in State v. Siddoway,61 Utah 189, 211 Pac. 968; Lee v. State, 16 Ariz. 291,145 Pac. 244, and People v. Moshiek, 323 Ill. 11, 153 N.E. 720, cited by counsel for defendant, in all these cases it was expressly held that the giving of such an instruction didnot constitute reversible error.
[5, 6] For the purpose of showing good character, in the sense of general reputation, defendant called two witnesses. The testimony of one, simply to the effect that defendant had always been "respected by almost everyone that has known him" clearly was inadequate to prove the general good reputation of defendant as a peaceable and law-abiding citizen. The other witness in a somewhat hypothetical manner did testify, however, that defendant's reputation in such respects was good. Defendant tendered, and the court refused to give, an instruction to the effect that since defendant had introduced evidence of his good character, the jury should consider that evidence "together with all other evidence
in the case, because the law presumes that a person of such reputation is less likely to commit a crime than a person of a different reputation." The record does not disclose whether the refusal was grounded upon the theory that the proof was insufficient to justify an instruction on the subject, or upon the premise that the instruction legally was in improper form. Whatever was the view of the trial court its action was justifiable because of ambiguous and erroneous language in the tendered instruction which, instead of merely leaving it to the jury to attach such importance to the evidence of good character as they thought proper, should have informed them expressly of the scope of their power in the exercise of a sound discretion with respect thereto. See, People v. Elliott, 163 N.Y. 11, 57 N.E. 103; Peoplev. Childs, 85 N.Y.S. 627, 90 App. Div. 58, 18 N.Y. Cr. 114, and Commonwealth v. Chester, 77 Pa. Sup. 388. Secondly, notwithstanding that instructions containing the words "the law presumes," etc., have been approved by some appellate courts (See, Prater v. State, 107 Ala. 26,18 So. 238), we are satisfied that it may not properly be held that there is a presumption of law that a person of good character is less likely to commit a crime than a person of bad reputation. Knight v. State,22 Ala. App. 557, 117 So. 804; Crews v. State, 22 Ala. App. 564,117 So. 801, and State v. Ferrell, 202 N.C. 475, 163 S.E. 563. When defendant so asks an improper instruction on the subject of character, he has no ground for complaint if none at all is given. State v. McNamara, 100 Mo. 100,13 S.W. 938.
[7] The sheriff and undersheriff of El Paso county were permitted to relate to the jury a confession of defendant amounting to a full acknowledgment of his part in the commission of the criminal acts herein charged, allegedly made orally in the El Paso county jail in the presence of the district attorney, John Cahill, defendant's brother, and themselves on November 14. Counsel for defendant objected to the admission of the
confession on the ground that it was involuntary, and requested a preliminary inquiry out of the presence of the jury with respect thereto. It is strenuously contended that the failure of the court to grant this request and the reception of the testimony detailing the confession without such a preliminary hearing, constituted reversible error. Generally, there should be an adherence to the procedure requested by defendant and, if proper objection is made when evidence of the confession is about to be submitted, it is error to allow such evidence to go to the jury until the court, after a hearing out of the presence of the jury, has determined preliminarily that the confession was voluntary. Corollarially, it also is certain that a failure to observe the procedural requirements of the general rule is not fatal when the defendant is not prejudiced thereby. See, Buschy v.People, 73 Colo. 472, 216 Pac. 519. We are satisfied the latter situation affirmatively appears from the record herein. The examination of the officers to whom the confession was made contains no trace of any effort on their part to influence the defendant's conduct in this regard by inducements or threats. In fact, they testified that defendant specially requested that he be permitted to make the statement to them. They also stated that pursuant to defendant's express desire, his brother John was brought to the conference to hear, as admittedly he did, what defendant said. John was called as a witness for defendant and contradicted the officers as to one statement they had attributed to defendant, but gave no testimony from which it might be concluded, directly or inferentially, that the confession was other than voluntary. From the tenor of defendant's objections and from the statements in his affidavit concerning the circumstances made when the point was urged as a ground for new trial, it appears to have been his contention that the confession was rendered involuntary by the alleged occurrences: (1) That before making the statement he was not warned that it might be used against him; (2)
that following his arrest he was placed and kept in a cell separate and apart from the one occupied by his brother; (3) that he was interrogated daily and was accused "of divers and sundry crimes, including the murder of Sumner Osborne"; (4) that although within a day of two after his arrest he had requested permission to consult an attorney, he was not granted this privilege until "at least ten days subsequent to his arrest"; (5) that for about two weeks after his arrest none of his friends or relatives were permitted to see him; (6) that on "divers and sundry occasions * * * he was advised by different officers that portions of his property on his ranch in Teller County were being removed by one person or another, but was allowed to make no effort to prevent such removal until practically the time of his being taken to Teller County." The affidavit terminated with the statement, by way of conclusion, that because of the incidents above mentioned, defendant "was in no state of mind to make a voluntary statement."
[8, 9] Considering these contentions categorically, it is well established that a confession voluntarily made is not invalidated or made inadmissible in evidence by reason of the failure of the officers to inform the defendant that his confession might be used against him.Reagan v. People, 49 Colo. 316, 112 Pac. 785; Rogers v.People, 76 Colo. 181, 230 Pac. 391. It is further to be observed in this connection that here it was testified for the people, that in advance of his confessing, the defendant so had been informed by the district attorney. The fact that defendant was in custody at the time he made the statement, in itself, does not render the evidence incompetent (Reagan v. People, supra), nor is evidence of a confession "rendered inadmissible merely by the fact that it was obtained during an undue delay between arrest and the time when accused was brought before the court; by the fact that when it was made persons in authority were present * * *, or that he was
not represented by counsel * * * or because of other similar factors." 22 C.J.S., p. 1431, § 817. Bearing in mind that defendant was arrested on October 30, and the confession was made November 14, it is to be noticed that on the basis of defendant's own statement he was permitted to see counsel several days before the confession was made to the officers. "Also, the fact that the friends and family of accused were denied admission to the jail until after the confession was made does not render the confession inadmissible. 22 C.J.S., p. 1433, § 817.
The affidavit of defendant does not so much as suggest that upon any occasion he was questioned continually to the point of physical or mental exhaustion or that "third degree" methods in any form were attempted by the officers having him in charge. The fact that he was accused of the crime charged or of other offenses by the officers would not render evidence of the confession inadmissible.Osborn v. People, 83 Colo. 4, 262 Pac. 892. The assertion, if true, that defendant was told of the disappearance of his property, in the absence of some promise by the officers tending to alleviate his anxiety if he should confess, which is not even hinted, obviously would not render his confession involuntary.
Defendant finally assigns error upon the basis that his counsel was unduly restricted in cross-examination of witnesses for the people with reference to defendant's state of mind at the time he confessed. A careful examination of the record convinces us that this contention is without merit.
The judgment is affirmed.
MR. JUSTICE HILLIARD dissents.
On Petition for Rehearing.