McFetridge v. State

231 P. 405, 32 Wyo. 185, 1924 Wyo. LEXIS 58

Opinions

Bltjme, Justice

The defendant Charles D. McFetridge was convicted of larceny, and he appeals.

The conviction was for stealing, in Laramie County, Wyoming, on or about October 1, 1921, one pure-bred Hereford cow bearing a tattoo-brand with the number 105 in the ears as well as on the horns. The defendant admitted that the animal in question was in his possession, on the so-called McFetridge ranch in the state of Colorado, about 22 miles south of where it had been kept by its owner, commencing from about the middle of October, 1921, up to about January 1st, 1922, when he sold said ranch to Harry E. Miller and at which time he left said animal, together with nine other Hereford cows, on said ranch in possession of said Miller. The animal in question was returned to its owner in the latter part of January, 1922. The defendant explained his said possession in substantially the following manner: On October 14, 1921, he was told by Mr. Wolf that the Hereford cattle referred to were grazing along Willow creek in the neighborhood of his ranch. He knew nothing of them prior thereto. On the following day he was riding toward Ault, and when about three or four miles south of his ranch, he met a man in a Ford car who stated that his name was I. E. Smith. He had not seen or heard of him before. Smith asked defendant whether he had seen anything of the cattle in question. Defendant answered that he had not seen but heard of them. Smith thereupon said he had lost twelve head; that he would pay defendant $2.50 per head for all he gathered of them; that he would be up to see defendant in a few days; that he had disposed of his holdings in Carpenter, Wyoming; that he was moving to California, and that he thought that the cattle would be wandering back from the direction of Greeley to Carpenter. Defendant again met said Smith some ten days or two weeks later on the road south of Nunn; Smith then asked him to buy the cattle, but defendant stated that he could not do so. It was then agreed between them that defendant should keep said animals — possibly till the following April — for one dollar per month per head. Other evidence in the 'record shows that substantially the same explanation thus made by defendant as to how he came to have possession of the animals in question was made by him several times prior to the latter part of January, 1922. The witness Wolf testified that he told defendant, about October 14,1921, that the Hereford cattle in question were grazing on Willow Creek, and that defendant’s demeanor indicated that he knew nothing of them. The wife of defendant corroborated the latter as to what took place on the road south of Nunn, and the defendant’s testimony was corroborated in'minor particulars by other witnesses. Defendant, when on the witness stand, but not before, produced a letter, introduced as Exhibit B, mailed at Carpenter, Wyoming, dated November 15, 1921, addressed to defendant at Ault, Colorado, and received by him there. It is claimed that the defendant wrote this letter himself and it will again be referred to later. It purports to be signed by I. E. Smith. An erasure, however, had been made where “S” was written, warranting an inference that the document was not signed by any man whose real name was I. E. Smith. The document is poorly written, but in so far as we can decipher it, it reads, aside from the address and signature, as follows:

“I Rave not been able to get down there. Have you heard any more of those Herefords. I expect to go to Cal. for the winter and I am have a sale, and if you care to buy these herefords I and see you. I am just about cleaned out and may be we can make a deal. ’ ’

The defendant at the same time also produced another letter, introduced as Exhibit C, dated November 5, 1921, signed by defendant, directed to I. E. Smith, Greeley, Colorado, duly mailed but returned to defendant unopened. The letter was as follows:

“When do you expect to come after your cattle. I have found ten head. I am moving some of my cattle to Ault soon and if you want yours brought down let me know' soon.”

A like letter, so defendant testified, was written to T. E. Smith at Carpenter, and though the record is not clear thereon, was apparently not returned. Defendant admitted that he had not seen said -Smith since said time and had not heard from him. .He denied the charge against him and a number of witnesses testified to his reputation for honesty.

We thought it best to state the substance of the defendant’s evidence first, so that the evidence on behalf of the state may be judged in the light thereof and in connection therewith. The following facts, or inferences, to prove the venue, corpus delicti, and the identity of the person committing the crime in question appear from the record:

The animal in question was, prior to its disappearance about October 1, 1921, kept, together with other Hereford cattle to the number of about 1500, in a pasture on the so-called Hereford ranch about 7 miles east of Cheyenne, in Laramie County, Wyoming, and about ten miles north of the northern line of the State of Colorado. The pas ture was well fenced and the fence kept in good condition. Three ordinary wire gates gave access to and from the pasture. These were kept closed, though able to be opened at will. The animal in question was shown to be unusually gentle, giving, in connection with the evidence as to the condition in which the fence was kept, rise to the possible inference that it would not have voluntarily strayed from the herd. The animal was neither sold nor authorized to be sold by its owner. It was present in the pasture in question about September 1, 1921, at a-tally then made of the herd, but was found to be absent at another tally made about November 1st, 1921. About 4:30 p. m. on October 1st, 1921, the animal in question was seen by the witness Clyde G-lasspool at the so-called Reynolds ranch in Colorado, about 22 miles south of the Hereford ranch. The Reynolds ranch was then, as the evidence tends to indicate, temporarily in the control and possession of the defendant. The witness Clyde G-lasspool, driving through a gate of this ranch, saw three men at or near the corral of that place, about 300 yards distant from the gate. These men almost immediately, without approaching the witness, and apparently under suspicious circumstances, left the corral, two of them riding away in a gallop, and one of them driving aAvay in a Chevrolét automobile. The witness did not know the men that rode, but thought that the man in the Chevrolet ear was either the defendant or one Don Straight — in any event a man of a stature similar to that of the defendant. The latter was ordinarily, during that period, driving a Chevrolet car. The witness, upon approaching the corral, found, among other things, lariat ropes and a pile of horns. Some of the cattle at least, including the animal in question, had just been dehorned. The head of the latter was still bleeding, or showed evidences of recent bleeding. The horns had been cut, one ear had been “swallow-forked,” that is to say, had a piece in the shape of a Y cut out of it and the other ear had been cropped to the extent of at least one half. Some of these things at least, so the evidence indicates, are unusual in connection with pure-bred Hereford cattle, and all of them, in view of the brands on the animal in question, give rise to the possible inference that there was an attempt to mutilate it for the purposes of destroying its identification marks. The witness Clyde Glasspool returned to the Reynolds ranch the next morning and found that the lariat-ropes, the pile of horns and the cattle were gone.

The “I. E. Smith” letter heretofore mentioned and the incidents connected therewith played an important part at the trial. According to the testimony of the witness Gray, the defendant, in company with his brother-in-law Coates, came to the former’s place, not far from that of defendant, a short time previous to Thanksgiving day in November, 1921, and asked the witness whether he would not do him a favor and mail a letter for him at Carpenter, Wyoming, and stated, upon being asked why it could not be mailed at a nearer place, that it had better be mailed in Wyoming and at Carpenter. The envelope containing the letter, so the witness stated, was white, of medium size, addressed to Charley McFetridge, Ault, Colorado, with a return address to I. E. Smith; that the first name of defendant was not, on said envelope, written as “Charles” but “Charley;” that the name of McFetridge was misspelled; that the handwriting was very poor. At the time that the witness testified to these details, he did not know that this, or a similar envelope, would be' subsequently produced in court by the defendant; the latter in fact testified that Gray had not handled any of his mail, and hence apparently wanted the jury to understand that Gray could not have known of the existence of the letter and envelope which he produced in court. These details, however, which the witness related, were borne out by the envelope produced in court by the defendant subsequent to the time that the witness Gray testified. It is white, of medium size, mailed at Carpenter, Wyoming, November 19, 1921, addressed to Mr. Charley McFetereg, Ault Colo. The handwriting thereon is very poor. The left end is tom off, but what remains bears traces of having contained some sort of writing. In short, the envelope produced by the defendant himself bears striking testimony that the witness Gray had told the truth, and tending to overcome, in the minds of the jury, the evidence by which it was sought to impeach him. This witness testified to another conversation which he claimed to have had with defendant about January 1,1922. In that conversation, so the witness stated, he told defendant that rumors were afloat that the latter and two others got the Hereford cattle then in defendant’s pasture. We quote part of the testimony:

“ITe (defendant) said ‘that letter that you took to Carpenter and mailed for me, it was in regard to them cattle, ’ and he said ‘that clears me,’ and then when I told him about the other two parties that was accused or suspi-cioned of being with him, or suspicioned that they got the stuff from the Hereford ranch, he said ‘No I pulled that stunt off alone;’ that a man by the name of ‘Slick’ had had someone in Cheyenne write that letter.”

“I told him that I heard that day, and also before, that I had heard that people had suspicioned him and these other two parties of stealing these cattle from the Hereford ranch, and one of the parties had seen the cattle and knew the cattle. Q. “What was McFetridge’s reply? A. He made the remark, he said, ‘I pulled that stunt off alone, and I was working on that deal the day I came through your place.”

The witness Gray further testified that defendant came to his place, about the time that the latter had his preliminary examination in Cheyenne in connection with the present case, and stated that he had been asked in Chey enne whether Gray had not mailed a letter for him at Carpenter; that he, defendant, had denied that fact and stated to the witness: “Yon eonld have knocked me down with, a feather.” Defendant wanted the witness to go to Cheyenne to deny it, but this the latter refused to do.

As stated before, the defendant had evidently on several occasions maintained, as he did 011 the trial, that he received the Hereford cattle in question from one I. E. Smith. The evidence on the part of the state tends to show, that on one occasion, he was asked by the witness Farr if this T. E. Smith was the same party who, some time before, was “drunk at a round up” and that defendant answered in the affirmative. This party so referred to, as being drunk on the occasion mentioned, ivas identified by the witness Farr as a man then sitting in the court-room whose name was Victor Smith. This Victor Smith took the witness-stand, testified that he had lived in the’ vicinity of Burns, or Carpenter, for fourteen years, had handled Hereford cattle, which he sold in 1919, that thereafter he went to California and other places for a time, and that he did not turn over any Hereford cattle to defendant to be pastured. The witness Miller, who purchased the MoFetridge ranch, testified in effect that despite the fact that the defendant disclaimed that he owned the Hereford cattle, he nevertheless intimated that they might be bought for $75 to $80 per head; that he would take up with I. E. Smith a proposition to purchase them; that Miller offered $50 per head, and that defendant then stated that Smith had returned from California and he would communicate with him. I. E. Smith, however, never appeared and the jury were justified in drawing the inference that he was a mythical person.

Counsel for defendant claim that the evidence in the ease is insufficient to sustain the verdict. It is claimed that the corpus delicti has not been proven; that no felonious taking has been shown. We are cited to Robinson v. State, 18 Wyo. 230, 106 Pac. 24, where the court held that evidence of possession of goods recently stolen is not admissible for the purpose of proving corpus delicti — that the goods have been stolen. ¥e may readily concede that the mere possession of property recently lost does not show that larceny has been committed, but when such possession is accompanied by. incriminating circumstances a different question arises. Thus it was said in Dalzell v. State, 7 Wyo. 450, 455; 53 Pac. 297, 298:

“The loss and subsequent finding of property does not prove, or in many cases tend to prove, the corpus delicti— that it was lost by larceny. But the loss and even imperfect identification of it in the possession of the accused, together with incriminating circumstances of misstatement and concealment may, as in this ease, not only identify the guilty person but satisfactorily establish the corpus delicti.”

This case was followed and approved in Richey v. State, 28 Wyo. 117, 131, 132, 201 Pac. 154, 205 Pac. 304. We cannot agree with counsel for defendant that the testimony of the defendant's possession of said cattle is the only testimony in the case connecting the defendant with the crime and that hence, since such possession does not show the commission of larceny, there is no evidence whatever of the corpus delicti. The incriminating circumstances in this ease, while in many respects different, are as strong as those in the Richey case. The confinement of the animal in question in a well-kept pasture, together with the fact that it was unusually gentle, had a tendency to show that it would not voluntarily stray away, particularly to a distance of twenty-two miles; the circumstances of its mutilation warranted the jury in finding that there was a deliberate attempt to conceal the evidences of larceny. The testimony of Gray, which the jury had a right to believe, would authorize the latter in finding that defendant had virtually acknowledged that he had stolen the animal in question. The jury had a right to find that defendant undertook to make it appear that he received said animal from I. E. Smith, a mythical person, warranting the inference that defendant deliberately undertook to conceal the crime of larceny committed by him. These and other facts and circumstances in the case, which we need not pause to point out, fully, we think, warranted the finding not only that the crime of larceny had been committed, but also that the defendant was guilty thereof.

Nor can we agree that there is not sufficient evidence in the record showing that the crime was committed in Laramie County, Wyoming. It is, of course, true, that the animal might have strayed from that county into the State of Colorado. But that, under the circumstances shown in this ease, would be mere conjecture. In determining this question the jury had a right to consider the condition of the pasture in which the animal was kept, the fact that the animal was unusually gentle, the distance from the Hereford ranch, the home of the animal, to the Reynolds ranch, the mutilation of the animal at the latter place under suspicious circumstances, the fact that defendant attempted to establish a claimed ownership of the animal in I. E. Smith at Carpenter, in said Laramie County, the falsity of defendant’s claim as to how he came into possession of the animal, and the conversation with Gray about January 1, 1922, which might be construed as an admission by defendant that he stole the animal from the Hereford ranch. The jury were the judges of the facts and we think that there was ample evidence in the record to sustain their finding.

In this connection it is urged that the court erred in not giving to the jury defendant’s requested instruction No. 12, to the effect that they must find beyond a reasonable doubt that the crime was committed in Laramie County, Wyoming. There is a sharp conflict of authority as to whether venue should, in a criminal case, be shown beyond a reasonable doubt or by a preponderance of the evidence. 16 C. J. 769; note Ann. Cas. B. p. 939 ; L. R. A. 1918 B. 1187. The case at bar involves not only the question of venue as between two counties in the state, but also as to whether the crime was committed in "Wyoming or Colorado. The only case which we have found -which involves the latter of these conditions is State v. Jackson, 142 La. 450, 77 So. 196, L. R. A. 1918 B. 1178, where it was held that the question whether or not a crime has been committed within the state where the law invoked for its punishment prevails is a question bearing directly upon the guilt or innocence of the accused and must be proven' beyond a reasonable doubt. We are not, however, called upon to decide the question, for the reason that we have no proper assignment of error in regard to it before us. That assignment of error, contained in the motion for a new trial, is in the following words: “That the court erred in refusing to give instructions Nos. 3, 4, 11, 12, 13 and 14 on the law, tendered and prayed for by the defendant.” That language is repeated in the petition in error. It is not now claimed that the court erred in its refusal to give any of the instructions so mentioned, except only as to said requested instruction No. 12, and we must therefore assume that the court correctly refused to give the other instructions. In Dickerson v. State, 18 Wyo. 440, 473, 111 Pac. 857, the court considered an assignment of error in the following language: “The court erred in giving to the jury instructions No. 1 to 8 inclusive, asked by the plaintiff. ’ ’ The court said: ■

“The error here alleged goes to these instructions as a whole. The rule is well settled that it is incumbent upon the complaining party to point out with definiteness and particularity the error of which he complains, so that the trial court may pass upon the exact question which may thereafter be presented for review. It will be observed that the assignment is not that the court erred in giving each of the instructions, but the assignment was directed to the- entire group designated, and that was the question presented to the trial court in the motion. Such being the case the universal rule is that the assignment cannot be sustained if any one of the group is correct. 29 Cyc. 950; 14 Enc’y. P. & P. 893. * * * Such being the law, the correctness or incorrectness of this instruction is not properly presented by the record. ’ ’

The situation in the case at bar is substantially that in the ease just cited, and the same rule must be applied.

We find no merit in the contention that the testimony of the Avitness Clyde Glasspoole should have been stricken from the record. He testified, as has been seen, to the mutilation of the animal in question on the Reynolds ranch. This testimony was clearly admissible as tending to prove the corpus delicti. He further partially identified the defendant as one of the parties who ivas then present. The jury Avere the judges of the weight of this evidence.

Finding no reversible error in the record, the judgment of the district court should be affirmed. It is so ordered.

Affirmed.

Potter, Ch. J., and Kimball, J., concur.