State v. Booth

127 P. 1017, 46 Mont. 334, 1912 Mont. LEXIS 123

• Court: Montana Supreme Court
• Decided: November 14, 1912
• Docket: No. 3,178
• Status: Published

Opinion

MR. JUSTICE SMITH

delivered the opinion of the court.

The defendant was convicted, in Valley county, of the larceny of two bay geldings, the property of one Henry Kirns. He appeals from the judgment and from an order denying his motion for a new trial.

The evidence justifies the following conclusions of fact: That in October, 1909, Henry Kirns and the defendant engaged in a so-called horse trade, wherein Kirns traded to the defendant two bay geldings each branded “Cross U” on the right thigh. The horses were not present at the time of the trade, but were ‘ ‘ running on the creek” in the vicinity. Kirns had known them since they were colts. After the trade, Booth said to Kirns: ‘ ‘ When are you coming down and get your two cross U geldings?” Kirns replied: “Why, I will get them in the spring roundup.” At the spring roundup he was unable to find the animals, but about September 1, 1910, he found them in the possession of one Ned Quinn. The horses had been sold to Quinn by the defendant, without the consent or knowledge of Kirns. Quinn told the defendant that Kirns claimed the horses and asked him whether they belonged to Kirns or him, and the defendant replied: “Them two horses I traded to Kirns, but he has been getting smart and bragging, and I am going to beat him out of them. You stick to those horses. I want you to stick to them. You are a ward of the government and so is Rosa [Booth’s wife]. You say you bought the horses from Rosa.” During the trial defendant asked Quinn: “What are you going to testify to?” Quinn replied: “I ain’t going to say anything only the truth,” to which defendant rejoined: “That don’t sound very good. That is liable to send me over the road.” At the time of the purchase of the geldings by Quinn from the defendant, the animals were at or near Booth’s ranch. The latter said to Quinn: “There is one of them, and the other one is out there. We will get them in.” Quinn testified: “So we went to get them in, and tied them up and I took them home.” Albert Kirns saw one of the geldings on the range in February, 1910, at which time the defendant said to him, pointing out the horse: “There is one of the cross U geldings I traded to your father.” The défendant told the witness Eddie Bear: “I have traded my two geldings I got from old man Sears to Henry Kirns. I will show you the horses I got in trade.” Bear testified: “He showed me them two bay geldings he traded to Mr. Kims. ’ ’ Defendant told the witness Shield: “When you get in there [at a hearing before the Indian agent] tell him that Albert Kirns told you that they were. doing all this just to get Booth in trouble. I will give you five or ten dollars if you will swear that way.” ■ Defendant also told Shield in October, 1910, referring to the two cross U geldings: “I own them. I won them from Kirns. I traded them to Kirns, but if he ain’t got sense enough to let me alone, he ain’t going to get them. There' is one man that knows about those horses and his name is Logan Walker. If he gives me away, it is all off with me.”

1. The first contention of the appellant’s counsel is that the [1] state failed to prove property in the person named as owner in the information, to-wit, Henry Kirn, because it developed at the trial that his name was Henry Kims. There is not any merit in this point. The names are practically identical.

2. Again, it is contended that neither property nor possession were shown to have been in Kirns at the time of the [2] alleged asportation by Booth. There was testimony on the part of two relatives of the defendant, his wife and his father in law, that the geldings belonged to Mrs. Booth, but under the circumstances the jurors were under no obligation to believe it. (See State v. Willette, ante, p. 326.) The evidence heretofore quoted shows that Booth claimed to own the geldings, treated them as his property, referred to them as his, and traded them to Kims, retaining the proceeds of the trade. Under these circumstances, we think the jury was justified in concluding that ownership was properly laid in Kirns. (State v. Van, 44 Mont. 374, 120 Pac. 479.) It is a significant fact that the alleged bill-oil sale from Sears, the father of Mrs. Booth, to her, for the geldings, was executed two months after the trade between Kirns and Booth.

3. There was a question of fact in the ease as to whether Booth traded the two geldings referred to and described by Kims, or two others, which he claimed to own, but that question was settled against the defendant by the verdict.

4. We think there was sufficient evidence that the defendant took the animals from the possession of Kirns. In October, 1909, the latter had stated to the defendant that he would leave them [3] where they were until the spring roundup. In May, 1910, defendant said to Quinn, referring to the animals: “There is one of them, and the other one is out there. We will get them in.” Thereupon the defendant and Quinn got them in and tied them up and Quinn took them home. We regard this as sufficient proof of a “taking” on the part of the defendant.

5. There is evidence in the record that Booth’s ranch, where the crime was committed, is three or four miles north of Poplar, Montana, and we take judicial notice that Poplar is far [4] more than that distance from the Canadian or North Dakota boundary lines.' There is no merit in the contention that Quinn and Booth may have gone outside of Valley county to get [5] the animals. Booth himself testified that they ranged on and near his ranch, and at the time of the taking he was able, from where he stood, on the ranch, to point out one of the animals; and it is a reasonable conclusion, from the evidence, that the other was near by.

6. Finally, it is contended that the court erred in refusing to allow the defendant to answer this question: “Do you know [6] whether or not the geldings mentioned in the bill of sale are the geldings involved in this prosecution?” If this ruling was error, the error was cured by the reception, without objection, of this testimony of Louis Sears: “I know the horses that Mr. Booth was arrested over. I sold them to my daughter Rosy Booth. I gave Rosy Booth a bill of sale of these horses. That is my signature: ‘Louis Sears.’ ” (Whereupon the bill of sale was received in evidence.)

We find no reversible error in the record. The judgment, and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.