State v. Crago

163 N.W. 561, 39 S.D. 123, 1917 S.D. LEXIS 103

• Court: South Dakota Supreme Court
• Decided: June 26, 1917
• Docket: File No. 4084
• Status: Published

Opinion

’SIMTH, J.

[1] Appellant was convicted of the larceny of a horse in Butte county, and assigns as error insufficiency of the evidence. Other errors are assigned, but we deem it unnecessary to consider them. Respondent contends that the specifications of insufficiency are not such -as to warrant a review of the evidence. The specification in substance is that the evidence is wholly circumstantial, and that the guilt of the acoused, if established, must be inferred from the fact that he had the horse in his possession at a time some four months subsequent to the date of the alleged larceny, and that such possession was reasonably explained by defendant. While not as full and complete as it might have been made, we deem- the assignment sufficient to justify a review of the evidence.

[2] The indictment charges the larceny in Butte county of one bay gelding, three years old, and one iron grey gelding, two years old, all the property o.f John Seymour. The evidence showed that the two horses with several others belonging to Seymour, were -in a fenced pasture adjacent to- Seymour’s dwelling house; the pasture was fenced with two wires tied on the posts with bailing wire; posts two- or three rods apart; intervening wires supported by two or three stakes; the horses were missed on the morning of May 19th; the fence was found to be down in two places near the northeast corner of the pasture, about a quarter of a mile from the house; the horses had been turned into the pasture about the 1st of April; there was a gate between the barn and the pasture which was generally left open so that the horses could get into the barnyard and drink where there was a pond. The evening of May 19th the gate was closed to exclude the horses from the barn and the yard about the bouse; it was drizzling rain, which turned into snow toward morning, and was pretty cold. In the morning the two horses were missed, but the others were still in the pasture; there were no horses’ tracks or tracks on the snow at the places- where the fence was down; the ground was sticky; the stakes on the fence were pulled out, laying slanting on' the ground; Ole Wang, Seymour’s son-in-law, started out to hunt the missing horses; went about in small circles, looking -for tracks, and then went east and -southeast about 10 miles, and afterward-s north about 4^2 miles. The horses were not seen until September 8th, when they were found in the pasture o-f one Dorsett in Lawrence county, about 30 miles south of Seymour’s place, which was in Butte county. Dorsett testified that he found four stray horses in his pasture, which was near the dwelling house of defendant’s father. The accused, then recently -married, was living at his father’s house. Dorsett testified that the horses found in his pasture were two sorrels, a black and a bay; that he did not see a grey gelding in that neighborhood, and that no such horse was in the pasture; that the accused -came over and claimed three of the horses, but did not claim- the bay horse. Mrs. Dorsett testified that on the morning of September 6th she saw the aocused and a companion passing close to their house, each riding a horse and leading a third; could not describe the horses they rode, but th-e one led was a little -black horse. One John A. True testified that he got the bay gelding which- Seymour lost out of Dorsett’s pasture and turned it over to- Mr. Seymour. There is no evidence whatever that it was ever in the possession of the accused.

One Dindley testified that he -lived -about a mile from- the Crago ranch; that he had a talk with Charley Crago in reference to a two year old iron grey gelding; that this iron gray gelding had 'been running out for some time with his stock on his unfenced land, and had followed a couple of mares and colts into his pasture adjoining this land; that defendant Crago came to him and told him that he had taken the grey gelding out of the pasture, and had taken him home; that he had bought him of one McQuigan; that he bought three- at 'the same time; that he thought the horse was doing no damage or he would have taken him up sooner. The witness told Crago -that the horse had no brand, and he did not know whose it iwas, but thought possibly it was Jim Murray’s; that the accused said the horse had something of a hair brand on him, and the witness told him it was all right if the horse was his. This conversation occurred near the ist of September. This witness also testified that the grey gelding had been in the lane near his pasture for about a month or more; that after -this -conversation he saw the horse in Crago’s pasture probably six days; that the h-o-rse had not been in Crago’s pasture before the time of the conversation, but had been running in the lane. The accused testified- that he was born on his father’s ranch and had lived there all his life; was .22 years old, and was married in 'September; that he never tol-d Lindley he was the owner of the grey gelding; that if anything was said about the ownership of Hie grey -colt, it was that he thought he knew who the owner was; that it -was a colt that had been advertised by a man, Joe Spangler; that he had- heard that Spangler had advertised a grey colt; that Cecil Comow told him that Spangler had -lost a grey colt, and that a reward was offered for it; that the accused had seen the grey colt running in the road near Lindley’s, with Lindley’s horses; that after Curnow told him about the grey colt being advertised, he went -over and looked in the road for the colt; that it was not ther.e, but was in Lindley’s pasture, and he took it out and took -it home, and put it in his home corral; that the advertisement for the lost c-olt was at Hetzel’s, written on the barn door; that he went over to- Hetzel’s the nex-t day and read the advertisement, and found that it was a bay colt and not a grey colt that was lost, and then went back home and turned the grey -colt out on the road.

In this 'connection it may be noted- that Thomas A. Armstrong, one of the state’s .witnesses, testified that he was acquainted with Lindley, and that about the ist of September he found the iron grey gelding outside near Lindley’s pasture, and took it up, and later turned it over to Mr. Seymour. The accused also testified that if anything was said to Lindley about purchasing horses from McQuigan, it was that he told 'him he had gotten a black team from McQuigan; that he still had the team. He also testified that he had never seen the grey gelding since he turned it into the main traveled road, after he had found it was not the one Spangler had lost; that the horse was only' in their pasture two night and one whole day; that he took the colt from Lindley’s pasture one afternoon, and the next day went over to Lindley’s and told him about taking it, and then went over to Hetzel’s to see the advertisement. Spangler testified to having put the advertisement on the door at Hetzel’s, and offering a reward. Cecil Curnow testified that he remembered telling Crago about the horse whioh was advertised by Spangler on the barn door, but did not remember what description he gave him of the horse. The testimony of these witnesses substantially covers every particle of evidence in the record connecting accused with possession of the alleged stolen property. A number of witnesses who had known the accused since his boyhood testified to his good reputation in the community where he lived, and no attempt was made by the state to rebut this evidence. We are satisfied that the evidence is wholly insufficient to sustain the verdict of the jury.

The order and judgment of the trial court are reversed.