Richey v. State

201 P. 154, 28 Wyo. 117, 1921 Wyo. LEXIS 4

• Court: Wyoming Supreme Court
• Decided: October 18, 1921
• Docket: No. 1015
• Status: Published

Opinions

Kimball, Justice.

Annie Richey was convicted- of larceny of neat cattle, and brings the case here in error.

The information, with the formal parts omitted, charges that:

“Annie Richey and Charles King, late of the connty aforesaid, on the 23rd day of July, A. D. 1919, at and in the county aforesaid, then and there being, did then and there unlawfully and feloniously steal, of the personal property of Davision Brothers, seventeen head of neat cattle, then and there of the value of $50.00 each; two head of neat cattle of the personal property of William Spencer, then and there of the value of $50.00 each; four head of neat cattle of the personal property of Lincoln Livestock Company, then and there of the value of $50.00 each, and two head of neat cattle of the personal property of Ernest Corless, then and there of the value of $50.00 each.”

Defendant King was found not guilty, and when hereinafter we mention the defendant we refer to plaintiff in error only.

A motion to quash the information upon the ground that it charges in one count four separate and distinct offences was denied by the court, and this ruling is assigned’ as error. We construe the information to charge that all the cattle mentioned in it were taken at the same time and place, and, therefore, it charges but one larceny. This conclusion is unaffected by the circumstance that it appears that the cattle stolen were not all owned by the same person or company. (Ackerman v. State, 7 Wyo. 504, 54 Pac. 228; 17 R. C. L. 54; note to State v. Sampson, 42 L. R. A. (N. S.) 967.) There is little," if any, authority to the contrary. The case of U. S. v. Beerman, 5 Cranch. C. C. 412, Fed. Case No. 14560 was expressly disapproved in State v. Ackerman, supra. Counsel rely upon State v. Bliss, 27 Wash. 463, 68 Pac. 87 and Joslyn v. State, 128 Ind. 160, 27 N. E. 492, 25. Am. St. Rep. 425, but neither case can be accepted as authority in support of the motion.

It appears from State v. Makovsky, 67 Wash. 7, 120 Pac. 513, that the Bliss ease has been expressly overruled, and by Furnace v. State, 153 Ind. 93, 54 N. E. 441, the Joslyn casif not overruled, has been limited, as “an authority, to those cases where the information does not charge that the different articles of property were stolen at the same time. The motion to qnash was properly denied.

It is argued that the information is insufficient because it fails to allege that Davision Brothers was a co-partnership and the Lincoln Livestock Company a corporation. The omission of those allegations was not made the ground of the motion to quash nor of any other objection to the information in the trial court, is not assigned as error here, and we might well disregard the point. However, as it is claimed that the information for this reason is fatally defective (citing State v. Clark, 223 Mo. 48, 122 S. W. 665, 18 Ann. Cas. 1120), we shall not pass the question without consideration. In the case cited, where it was held that the information for larceny was fatally defective for failure to allege the incorporation of the owner of the stolen goods, the question was considered, in the absence of a statute, as one under the common law. But, in this state, the effect of defects and imperfections in informations is largely regulated by statute. Section 7462, Wyo. C. S. 1920 provides that “No indictment shall be deemed invalid * ■* * for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits; ’ ’ Section 7483, that a motion to quash may be made when there is a defect “in form of the indictment, or in the manner in which the offense is charged;” and Section 7487, that defects which may be excepted to by motion to quash, shall be waived by demurring, or pleading in bar, or not guilty. Under such statutes, indefiniteness is a defect in the manner of charging the offense, and, unless raised by motion to quash, may be waived. (Wilbur v. Territory, 3 Wyo. 268, 21 Pac. 698; Bryant v. State, 7 Wyo. 311, 51 Pac. 879; Koppola v. State, 15 Wyo. 398, 89 Pac. 576; White v. State, 23 Wyo. 130, 147 Pac. 171; State v. Messenger, 63 O. St. 398, 59 N. E. 105; Arnsman v. State, 11 O. Cir. Ct. (N. S.) 113.) Without deciding that the information is defective at all in failing to describe more fully Davision Brothers and Lincoln Livestock Company, we hold that the defect, if any, was in the manner of charging the crime, not sufficient to invalidate the information, and not having been presented to the court by the motion to quash, was waived ■ by the plea of not guilty.

It is contended that there was a fatal variance because the evidence on the part of the state tended to prove, and the verdict of the jury found, that the cattle alleged in the information as the property of Davision Brothers was the .property of Davidson Brothers. We find nothing in the record to indicate that the defendant was in any way misled by such variance. Section 7463 Wyo. C. S. 1920 provides that a variance between the 'statement in the information and the evidence in the name or description of any matter or thing whatsoever shall not be deemed ground for an acquittal unless the trial court shall find that such variance is material to the merits of the case or prejudicial to the defendant. We think there is a clear inference -from the evidence that the defendant knew that Davision Brothers, mentioned in the information, and Davidson Brothers, referred to in the evidence and verdict, were the same. We agree with the trial court in its refusal to.find that the variance was material or prejudicial; (Eggart v. State, 19 Wyo. 285, 116 Pac. 454; Harris v. State, 23 Wyo. 487, 153 Pac. 881.)

Some statement of facts which the jury may have found from the evidence is necessary to an understanding of some other questions. Shortly before July 23, 1919, neat cattle belonging to the various parties named as owners in the information were upon the open range near the defendant’s ranch. July 25, defendant loaded at Fossil, Wyoming, for shipment to a commission firm at South Omaha, Nebraska, thirty-two head of cattle, all of which had been branded recently by defendant with brands owned or used by her, placed over older brands. Upon the arrival of the cattle at their destination, and before they had left the pens of the consignee, they were examined by an inspector of live stock whose duty it was to inspect all cattle arriving at that market from Wyoming. It was discovered then, and by later investigations, that the older brands were different from the fresh brands, and that the former, in most instances, belonged to persons other than the defendant. The recently seared ears of the cattle raised the inference that the ear marks had been obliterated. Seventeen head, according to the testimony of the inspector, originally bore the brand of Davidson Brothers, with which he was familiar, and, discovering this, he notified the county attorney of Lincoln County of the result of his inspection, and ordered the cattle to be held for further investigation. In the meantime, on July 26, William Davidson, of Davidson Brothers, riding near Fossil, found two of the partnership cattle on which it appeared that the defendant’s brand had been placed over that of Davidson Brothers, and learning that defendant .had shipped a car of cattle the day before, he followed the car to Omaha, where he arrived soon after the cattle were unloaded. He there examined some twenty-six head of them. Bight head were taken to a packinghouse, where they were killed and skinned in the presence of Davidson and the inspector, and when the inner sides of the hides, after removal from the. animals, were examined, the old brands only could be discerned. There was evidence tending to prove that of the eight hides, four bore the brand of Davidson Brothers, two. of Corless, one of Spencer and one of Lincoln Livestock Company. These hides were inspected by the jury at the trial, and doubtless furnished convincing evidence of the brands which they bore. The verdict found the defendant guilty of stealing three head owned by Davidson Brothers and one head owned by Lincoln Livestock Co.

The defendant admitted that the cattle shipped from Fossil had been recently rebranded by her, but claimed that the older brands on said animals were hers also. Her old brands, she says, were dim, and she rebranded upon the advice of her father, who had told her to ship no cattle except those upon which the brands were distinct.

Other incriminating circumstances we deem it unnecessary to rehearse. ....

It is urged that there was error in admitting -in evidence records kept hy railroad and stockyard employees showing the movements of the car of cattle from .Fossil to South Omaha. Stated briefly, the evidence in which there was reference to such records was as follows:

The railway agent at Fossil testified that the records of . her office showed that the cattle loaded there July 25 were put into car 45782; the manager of the stock yards at Cheyenne testified that his records showed that car 45782 arrived there July 26, when the cattle therein were unloaded, and on July 27 reloaded into car 35677, and the superintendent of the stock yards at Valley, Nebraska, testified that car ■35677 arrived there July 29, when the cattle were unloaded, and on July 30 reloaded into car 1367. This testimony of ..these three witnesses was elieted by questions to which no objection was made, nor was there any motion to strike out the answers.

Over objection, an employee of the stockyards company at South Omaha testified that his record showed that thirty-two head of cattle were unloaded there July 30 from car 1317. The record itself was not introduced in evidence, and probably was used by the witness as a memorandum from which to refresh his memory, though the facts warranting such use do not clearly appear. There was received in evidence, also over objection, the way-bill of the shipment.

. The defendant admitted the billing of 32 head of cattle to the commission company; their receipt by that company was proved by the unobjectionable and uncontradicted evidence of other witnesses, one a defendant’s witness, an agent of the consignee, who identified tally sheets made by the inspector of livestock, stating that they had reference to the shipment of thirty-two head of cattle received July 30 by the consignee from defendant. Therefore, whatever may be said as to the right of the defendant to deny the inference that the cattle delivered were the same cattle that were billed, we are of opinion that there was no dispute of the bald fact that thirty-two head of cattle were shipped by her from Fossil and the same nnmb.er received by her consignee at Omaha; and, consequently, the admission in evidence of the testimony of the employee of the stockyards company and the way-bill, which tended to establish that fact, was not harmful.

It is contended that it was error to permit the jury to examine the hides which were taken from the eight head of cattle killed at South Omaha, for the reason that they were not sufficiently identified as having been taken from animals that had been shipped by defendant. We are of opinion that this inspection by the jury was properly permitted, and after what has already appeared from the foregoing statement of the facts, we believe the question requires but little discussion. From the facts proved it was the almost irresistible inference that the cattle received at South Omaha and examined there by the inspector and Davidson were the same cattle shipped by defendant. There was positive testimony that the eight head which were killed were a part of the cattle so examined, and like testimony that the hides' exhibited to the jury were the ones that had been taken from those eight animals, with no change in the meantime of the marks or brands. In this connection it is argued that in finding the ownership of the cattle to be in the parties named as owners in the information was in disregard of the rule that one presumption or inference cannot rest upon another presumption or inference, citing State v. Potello, 40 Utah 56, 119 Pac. 1023. Without questioning the rule, we think the case at bar furnishes no example of its violation. If we understand the argument of counsel, it is that the presumption of ownership arising from proof of ownership of the older brands found upon the animals at South Omaha rests upon the inference that those animals were the same as the ones shipped from Fossil by defendant. We cannot accept this reasoning. The fact that the cattle discovered by the inspector at South Omaha were the cattle which had been claimed, possessed and shipped by defendant was inferred from facts which were proved.' It then became important to the state to prove the ownership of the property. This fact, of course; could not be inferred from the fact, previously inferred, that the defendant had claimed, possessed and owned them, but could be proved by any competent evidence tending to establish it, and was proved by evidence showing the fact of ownership of the original brands on the animals, which under the statute was prima facie proof of the ownership of the animals themselves. We see here no question of one inference resting upon another, but each inference or presumption rests upon its own facts.

The witness Davidson was permitted to testify that soon after the car of cattle was shipped by defendant he discovered on the range in the vicinity of Fossil four other cattle .on which the Davidson Brothers’ brand had been altered as he found it altered on the cattle discovered at Omaha, and that the defendant afterwards claimed them as hers. Two of these cattle were those discovered July 26, to which we have already referred, and the others were discovered a few days later. It is contended that the reception of that evidence, tending to show that defendant had been guilty of other criminal acts, was error. It is true that evidence of crimes other than that charged in the information may not be received for the purpose of leading to the conclusion that the defendant is a person likely from his criminal conduct or character to have committed the offense for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bear upon the question whether the acts alleged to constitute the crime charged in the information were designed or accidental, or to rebut a defense that would otherwise be open to the accused. (17 R. C. L. 75; 16 C. J. 588-589; Note 43 L. R. A. (N. S.) 776; note 3 A. L. R. 1213 ; Smith v. State, 17 Wyo. 481, 101 Pac. 847.)

The defendant, admitting the recent branding and claiming it was done because her older brands could not be deciphered readily, presented to the jury the question whether, even though she did not pwn the cattle, she .may not honestly have believed she did; that is, whether the act of misbranding was by intention or mistake. . Evidence of. a similar misbranding of other cattle was proper, not for the purpose of proving other crimes, but as bearing upon this question, and thus tending to prove the crime charged in the information. (Terr. v. Caldwell, 14 N. Mex. 535, 98 Pac. 167; State v. Morris, (Or.) 175 Pac. 668; Cannon v. State (Tex. Crim. Rep.) 208 S. W. 339.)

In a larceny case, evidence of the possession by defendant of goods other than those mentioned in: the.information may not be relevant unless it is sufficient to prove prima facie that such goods were stolen. It was so héld in State v. Jones (Wyo.) 191 Pac. 1075. It is argued that the evidence under discussion was subject to objection on this ground, but we must hold otherwise. Conceding for our present purpose that it did not make a prima facie case of larcény of the four head of cattle, it was sufficient to prove prima facie the relevant fact sought to be established; that is, similar, wrongful instances of misbranding by defendant at about the same time. In cases like State v. Jones, supra, the evidence is inadmissible unless it be sufficient to prove another larceny; in this ease it was admissible if it were sufficient to prove another misbranding.

The next question is the alleged insufficiency of the evidence to support the verdict. What has been said in treating another assignment of error expresses our view that the ownership of the cattle was satisfactorily established. That it was not proved that the cattle were taken feloniously is another alleged defect in the evidence. It seems to be contended that, to warrant a conviction, there should have been some different or additional evidence to prove that the cattle were lost by a felonious taking from the owner, that is, of the corpus delicti. Such a taking must, of course, be proved, but, as said in Dalzell v. State, 7 Wyo. 450, 53 Pac. 297, “the evidence relied upon to establish the corpus delicti in larceny is not necessarily, or indeed usually, distinct from that relied upon to identify the offender and prove the guilty intent.” ■ Quoting further from the same decision: “The loss of and subsequent finding of the property does not prove, or in many cases tend to prove, the corpus delicti; that it was lost by a 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 case, not only identify- the guilty person, but satisfactorily establish the corpus delicti.” The case there considered presented no more pronounced instances of misstatement and concealment than- the attempted obliteration by defndant in this case of the owners’ brands, and her claim afterwards that the cattle had always belonged to her. But, it is argued, the cattle may have strayed into the fields of the defendant and she, having thus innocently come into their possession, would not be guilty of larceny by reason of a subsequent appropriation- of them, because in such case the intention to steal at the time of the taking, which is an essential element of that crime, would be lacking. That the straying of range cattle into the fields of another works such a change in possession that the owner of the field, who appropriates them may not be convicted of larceny, is a proposition which we are not willing now to concede, and upon which we need not pass in this case as it is not presented by the evidence, nor consistent with any theory advanced at the trial. The defendant herself testified that she “gathered” the cattle, brought them home and rebranded them. We are of the opinion that there was ample evidence to establish the fact that the'cattle were taken from the- open range, and were not in defendant’s possession or custody until she took them with the intention of stealing them.

It is argued also that the defendant’s possession was not recent within the meaning of the rule, often invoked in larceny cases, that certain inferences may be drawn from the recent,, unexplained possession of stolen property. ' Such inferences, and the grounds upon which they may be based, are important in those-cases where the possession of the stolen property by the defendant is relied upon to establish the fact that he was thé person who look it. But we fail to see how this rule had any place in this case, and evidently the trial court was of the same opinion, as it refrained from giving any instruction upon the subject. The circumstances attending the taking or gathering by defendant of the cattle which were shipped from Fossil were not in dispute, and the only-issues under the evidence were: (1) did those cattle belong to defendant, or to the persons claimed by the state to be the owners; and, if that issue were decided in favor of the state (2) did defendant take them by mistake, or feloniously ? No inference that could aid the state upon those issues could be drawn from the fact of defendant’s possession, whether recent or remote, as possession by her was perfectly consistent with her defense.

It is also claimed that the evidence was insufficient to prove that the cattle found by the jury to have been stolen were all taken at the same time. It was the theory of the state that the defendant was engaged in one continuous transaction consisting of the gathering, branding and shipping of cattle belonging to others; that all of her acts during that transaction were with the same intention and set in motion by a single impulse, and that in the shipping of the cattle, which was the result of the transaction, there was but one “carrying away,” and but one larceny. The facts in support of this theory were, we believe, satisfactorily established. We do not decide that such facts would, in cases where the property of different owners is taken, necessarily result in only one larceny. Let it be conceded in this case that the time of taking from the range must be the determining consideration, upon the question whether there was one or several larcenies, yet we think the evidence was sufficient to support the finding of the jury that the cattle mentioned in the verdict were taken at the same time and place. ■ It was shown by the state that the defendant had stolen a number of cattle all of which were taken probably within a certain brief period. The defendant alone had knowledge of the exact time when any particular animal .was taken from the range; her evidence failed to disclose this knowledge, and she thus declined to present any issue which might thus have been raised. Nor did she, by objection, motion or requested instruction at the trial suggest to the court that the state should be required to elect to ask a conviction for the stealing of some particular part only of the property. (See West v. Com. (Va.) 99 S. E. 654.) The trial upon the theory that there had been only one larceny did not, we think, prejudice the defendant in making her defense, and the nature of the crime was unaffected by the number of cattle found by the jury to have been stolen.

The charge of the court was made up of seventeen, sepa-, rate, numbered instructions, and there is nothing in the bill of exceptions to point’ out at whose request any of them were given. The only exception to the instructions was “to the giving of all instructions by the court on behalf of the prosecution on the ground that they do not give the law applicable to the case. ’ ’ In any view which we can take of this- exception it is insufficient as the foundation of an assignment of errors here. It was evidently directed at some group of instructions; possibly, to the whole of the charge. An aggrieved party must point out definitely and particularly the ruling of which he complains, and an exception to. the giving of a group of instructions will be disregarded if any one of the group be correct. We consider this general principle settled in this state by Dickerson v. State, 18 Wyo. 440, 473, 479, 111 Pac. 857, 116 Pac. 448. In that case the court considered the sufficiency of assignments of error in a motion for a new trial, but the reason for requiring particularity in objections and exceptions applies- with perhaps greater force in the present case, where we have to consider the sufficiency of the exceptions at the time of the adverse ruling. (14 R. C. L. 809-811; 17 C. J. 86.)

-- The rule- requiring timely and definite exceptions to instructions' has been relaxed in criminal cases in this state in some particulars. In cases where the punishment was capital, the court has considered the entire record, although it did not ‘ disclose objections and exceptions, and -granted- a hew trial if, from such examination, - it determined that there were such fundamental and prejudicial errors as had deprived the defendant of that fair and impartial trial guaranteed to him by the constitution, and amounting to a denial of justice. (Parker v. State, 24 Wyo. 491, 161 Pac. 552; Ohama v. State, 24 Wyo. 513, 161 Pac. 558.)

In cases where the punishment imposed is less than capital, the general rule requiring that there be proper exceptions has been adhered to (Dickerson v. State, supra; Loy v. State, 26 Wyo. 381, 185 Pac. 796), except that in Palmer v. State, 9 Wyo. 40, 59 Pac. 793, 87 Am. St. Rep. 910 it was held that where the instructions as a whole present an erroneous view of the law as applicable to the facts of the case, a general exception to the charge is sufficient.

We have examined and considered the charge of the court for the purpose of determining the questions (1) whether as a whole it presented an erroneous view of the law as applied to the facts, and (2) whether it may be said that all of any group of instructions to which defendant’s exception may reasonably be considered to have been directed were _ erroneous. We find that both questions must be answered in the negative, and, therefore, there is no exception in the record which would justify the discussion of any specific instruction. We repeat, the issues in the case were simple, and they were no doubt well understood by the jury. And in view of that and the convincing' character of the evidence pointing to defendant’s guilt, we are satisfied that the verdict was not the result of any errone'ous statements in the instructions now criticized by counsel.

There remain for consideration some questions in regard to the sufficiency of the verdict, which reads:

“We, the jury duly impaneled and sworn in the above entitled case, do find the defendant, Annie Richey, guilty of stealing livestock, the property of, viz: 3 of Davidson Bros, and 1 of Lincoln Livestock Co. as charged in the information, and we further find the value of the property stolen to be a total of $200.

“H. E. Robinson, Foreman.”

Without undertaking to decide whether' any, and, if any, how much, of the. verdict might be regarded as surplussage, we shall consider it as a whole to determine its sufficiency.

A verdict' must be construed with reference to the information and the trial, and if, when so construed, it be responsive to the issues, and the court can understand the true intent and meaning of the jury, it is good. (Ackerman v. State, supra; Long v. State, 15 Wyo. 262, 88 Pac. 617; People v. Patrick, 277 Ill. 210, 115 N. E. 390; Kendall v. State, 183 Ind. 162, 105 N. E. 899.)

It is contended that the verdict is defective in' three particulars.

First, that it refers to the crime as “stealing live stock” instead of stealing neat cattle. As neat cattle are live stock, and the only live stock mentioned in the information or the evidence, there is no doubt that the jury intended to find the defendant guilty of the crime charged.

Second, that the language “3 of Davidson Bros, and 1 of Lincoln Livestock Co.” is indefinite. We think it too clear to require discussion that the language means “3 head” of the kind of livestock mentioned in the information and the evidence.

Third; that the finding of a value of $200 is insufficient to comply with the statute (§7549 Wyo. C. S. 1920) requiring that the jury find and declare the value of the property. The dollar is the unit of value in this country, and the omission of the dollar sign or word “dollars” in a verdict does not render it indefinite. (Ex parte McLean, 84 Kan. 852, 115 Pac. 647, 35 L. R. A. (N. S.) 653, and note.) Here the jury not only omitted the dollar sign, but placed before the figures another sign which we understand, when used, signifies number. However, we think it clear that the jury did not intend that that sign should have such meaning in this instance. ' The only evidence in regard to value tended to support the allegations of value in the information, that is, that the cattle were worth $50 each. The statement of value in.the verdict, if construed to mean $200.00, is consistent with the undisputed evidence, and to construe it otherwise would be contrary both to precedent and common sense.

As we find no error in the record the judgment will be affiirmed.

Affirmed.

Potter, C. J., and Blume, J., concur..