Peterson v. People

65 Colo. 106

• Court: Supreme Court of Colorado
• Decided: April 15, 1918
• Docket: No. 8860
• Status: Published

Opinions

Opinion by

Mr. Justice Teller.

Plaintiff in error was convicted of stealing three calves the property of one Lee, and brings error.

The principal witness for the State was one Horwood, a young man who had been employed by the defendant on his farm. This witness testified that, the defendant being away from home, he went out on the range and drove up the milk cows; that four young cattle followed along with the cows to the defendant’s premises; that defendant came home after dark, and asked whose calves were out in the road; that witness replied that he did not know, and that defendant then told him to drive them in, and he did so; that the next morning defendant looked the calves over, and drove off one of them which was branded; that in the afternoon of that day he helped defendant brand the three calves, and two cows which had not been found on the day before, when a large number of defendant’s cattle had been branded at a neighbor’s place. Witness testified further that defendant subsequently admitted that the calves probably belonged to Lee, and that defendant kept them shut up, and in reply to inquiries by Lee as to calves for which he was looking made statements tending to keep Lee from finding the calves; that the witness, when quitting defendant’s employment, accused him of stealing the calves, and made the same charge subsequently to others. Defendant and his wife testified that the calves were theirs; that they had raised them; that, when Horwood charged defendant with stealing the calves, defendant and his wife visited Lee, and told him of the charge, and asked him to come and see the calves to determine to whom they belonged. Lee having claimed them, defendant gave them up. Immediately thereafter he was arrested, and the trial followed in due course.

Error is assigned in the giving of instruction seven, which is as follows:

“7. You are. instructed that if you find and believe from the evidence beyond a reasonable doubt that the said defendant, on the 18th day of April, 1915, at the said County of Lincoln, did then and there wilfully, unlawfully and feloniously of the personal goods and chattels of Richard Lee, three head of neat cattle steal, take and drive away with the intent then and there to steal the same and deprive the owner of the immediate possession thereof, then you' should find the defendant guilty as charged in the third count of the. information, notwithstanding the fact that he afterwards returned the property in question to the owner; otherwise you should acquit him.”

Objection is made to the latter portion of this instruction on the ground that it states as a fact that defendant “returned the property in question to the owner”; thus informing the jury that Lee was the owner. Since the defense was ownership by the defendant, the determination of that question was material, and it was error for the court to assume, as it did, ownership in Lee. The use of the words “returned” and “owner” would justify the jury in concluding that the court held Lee to be the owner.

It is further objected that the court refused to give tendered instructions that if the jury had “a reasonable doubt on the question of whether the defendant did or did not honestly consider these animals his own property when he took possession of them,” it was their duty to acquit him.

This instruction should have been given.

Whether or- not the claim of ownership was made in good faith was for the jury to determine, under proper instructions. Miller v. People, 4 Colo. 182, and, if the evidence was sufficient to raise a reasonable doubt in the minds of the jury whether or not defendant made such claim honestly, or thought the calves were his when he took them, he was entitled to be acquitted. Van Straaten v. People, 26 Colo. 184; 56 Pac. 905; Johnson v. United States, 2 Okla. Cr. 16, 99 Pac. 1022. Refused instructions two and three each stated the above rule of law and one or the other of them should have been given. The instructions given do not cover this point.

Because of these errors the judgment is reversed.

Judgment reversed.

Mr. Justice White and Mr. Justice Garrigues and Mr. Justice Bailey dissent.