State v. Van

120 P. 479, 44 Mont. 374, 1911 Mont. LEXIS 108

Opinion

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The defendant was convicted of grand larceny and appeals from the judgment and from an order denying him a new trial. Appellant’s counsel make sixty-seven assignments of error and in argument group them under thirty-two separate heads. To consider the questions, thus raised, separately and at any length would extend this opinion unnecessarily and would not accomplish any useful purpose. Many of the assignments must necessarily be disposed of somewhat summarily.

1. Objection was made to the introduction in evidence of certain pelts (Exhibits “B,” “C,” “D” and “E”). We think the identification of the exhibits was sufficient.

2. An objection made by the county attorney to questions asked a witness for the state on cross-examination as to the character in which Mr. Dye, one of the alleged ownérs of the property in controversy acted, was sustained, and error is [1] predicated upon the ruling. The record discloses, however, that the witness afterward gave substantially the same evidence as that sought by the questions; so that .there was not any prejudice in the ruling, if erroneous.

3. Error is predicated upon the exclusion of Exhibits “H” and “J.” Neither exhibit is in the record or described, and it [2] is therefore impossible for us to say whether error was committed. (Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; Tague v. John Gaplice Co., 28 Mont. 51, 72 Pac. 297.)

4. While the defendant was a witness in his own behalf he was asked to state what Henry Chapman, his employee, told him about the property in controversy. An objection by the county [3] attorney was sustained. There was not any offer of proof made, and we cannot determine whether error was committed in the ruling. (Frederick v. Sale, 42 Mont. 153, 112 Pac. 70; Forquer v. North, 42 Mont. 272, 112 Pac. 439.)

5. J. D. Wynn, 'a witness for the state, was asked to give a conversation had between himself and Henry Chapman.' Without’objection the witness answered, and counsel for defendant [4] then moved to strike out the answer. We have repeatedly held that this cannot be done. (State v. Rhys, 40 Mont. 131, 105 Pac. 494.)

6. The witness Wynn and one- E. S. Herrick gave certain opinion testimony which was objected to upon the ground that a proper foundation had not been laid. We think the witnesses showed themselves qualified as experts.

7. Objection was made to certain testimony given by the witness Leiper; but the evidence was clearly admissible as rebuttal. (State v. Barrett, 43 Mont. 502, 117 Pac. 895.)

8. In instructions Nos. 2 and 3, given, the court defined larceny in the language of the Codes. Objection is made that the element of felonious intent is omitted in each, and State v. Rechnitz, 20 Mont. 488, 52 Pac. 264, State v. McLeod, 35 Mont. 372, 89 Pac. 831, and other cases are cited in support of the contention that this was error. But counsel overlook the 'fact that in instruction No. 5, given,, the court told the jury that it was necessary for the state to prove the felonious intent beyond a reasonable doubt. The instructions are to be considered as a [5] whole. The court is not held to state all the law applicable, in a single paragraph of the charge. (State v. Byrd, 41 Mont. 585, 111 Pac. 407.)

9. An instruction defining reasonable doubt, similar to No. 26 [6] given in this instance, was criticised by this court in State v. Crean, 43 Mont. 47, 114 Pac. 603, but it was held not reversible error to give it.

10. Defendant’s offered instructions 6, 8, 9, 10, 15, 16, 20, 21 and 22 were properly refused, as the substance of each was [7] covered by instructions given by the court. (Townsend v. City of Butte, 41 Mont. 410, 109 Pac. 969.)

11. Error is predicated upon the order of the trial court denying a motion in arrest of judgment, and in refusing to direct the state to elect upon which count of the information it would proceed. “A motion in arrest of judgment must be founded [8] upon some defect in the information.” (State v. Tully, 31 Mont. 365, 78 Pac. 760.)

The first count of this information charges that the defendant “did willfully, wrongfully, unlawfully and feloniously steal, take, drive and lead away seventy-five (75) head of sheep, the personal property” of Dye, Reed and Parrott, of the value of $375, with the felonious intent to deprive and defraud the true owners of their property. Counsel for defendant argue that while this first eount may be sufficient to charge grand larceny at common law, it is entirely inadequate to charge the crime under section 8642, Bevised Codes, and many authorities are cited in support of this contention. . It is earnestly urged that the cases cited are peculiarly applicable, since the statutes construed are similar to our section 8642 above. This may all be conceded, for the purposes of this appeal, but without avail to defendant; for his counsel overlook the fact that subdivision 4 of section 8645, Bevised Codes, also contains a definition of grand larceny, and that the'allegations in the first' eount of this information are ample to bring it within that last definition.

The second count charges that the defendant did feloniously steal, withhold and appropriate to his own use the seventy-five head of sheep, the property of Dye, Beed and Parrott, of the value of $375, with the felonious intent to deprive and defraud the true owners of their property. This clearly charges grand larceny under the first subdivision of section 8642 above, and section 8645, Bevised Codes. Subdivision 1 of section 8642 specifies three methods by which larceny may be committed: (a) By taking the property from the possession of the owner or some other person; (b) by false pretenses; and (c) by secreting, withholding or appropriating the property of another. (People v. Dumar, 106 N. Y. 502, 13 N. E. 325.) The second count charges the offense by this third method.

The third count charges that defendant, having these sheep in his possession as bailee of the owners, feloniously appropriated them to his own use, with the intent to deprive the true owners of the same. This count was drawn under subdivision 2 of section 8642 above. It follows the language of the statute and is sufficient. (State v. Brown, 38 Mont. 309, 99 Pac. 954; State v. Stickney, 29 Mont. 523, 75 Pac. 201.)

Since each count of this information is sufficient, the motion in arrest of judgment was properly denied.

The motion to compel the election was addressed to the sound [9] legal discretion of the trial court, and its ruling will not be disturbed in the absence of a showing that there was a manifest abuse of discretion. (Armstrong v. People, 70 N. Y. 38; Short v. State, 63 Ind. 376; Bailey v. State, 4 Ohio St. 441; Roberts v. People, 11 Colo. 213, 17 Pac. 637.)

12. The motion for a directed verdict and the motion for a new trial present the question: Is the evidence sufficient to sustain the verdict ? Counsel for appellant argue with much force [10] that the state failed to prove the ownership of the property as alleged in the information. It is charged that the sheep in question were the property of Dye, Eeed and Parrott. Neither of these persons was called as a witness, but the state relied for proof of ownership entirely upon circumstantial evidence.

Preston Willson testified that in the fall of 1909 he purchased something over 8,000 head of sheep for Dye, Eeed and Parrott, and managed the sheep for them for a short time; that in August, 1910, he was again employed to assist in a division of the same sheep between Dye, Eeed and Parrott when they dissolved partnership.

Howard Harvey testified that he was employed by Dye, Eeed and Parrott and had charge of their sheep from January 10 to August 16, 1910; that their sheep were sheared at the Paragon pens in June, 1910, and after being sheared were branded — the wethers with a 7-cross brand in green paint, and the ewes with a two-quarter circle brand in black paint; that the sheep were counted when they left the shearing pens and counted again about June 23, when he discovered that something like 1,100 were missing; that he found 900 along the Yellowstone river, and afterward found about 100 of the remainder in the defendant’s possession at his lower or King Gibb ranch; that he examined several of these sheep in defendant’s possession and could detect Dye, Eeed and Parrott’s brand on them under a black blotch brand which had been placed over the original brand; that on some of the sheep which he caught and examined, he found blotches of green paint; that as foreman for Dye, Eeed and Parrott, he went over his accounts with each of them; that he was present on August 16 when the sheep were divided between Dye, Eeed and Parrott, and the sheep then divided were the same that he had had in his custody, and the sheep he found in defendant’s possession were a part of the same sheep and a part of the sheep sheared and branded at the Paragon pens in June.

We think this evidence sufficient to go to the jury. (Rex v. King, 12 Cox C. C. 134.) The gist of the offense is the wrongful [11] taking or conversion of the property, and the crime is against the state and not against the owners. The question of ownership is directed to the description or identification of the property. The language of Commissioner Poorman in State v. Mjelde, 29 Mont. 490, 75 Pac. 87, is pertinent here: “Property must have an owner before it is the subject of larceny, but this statute does not define the character of that ownership — whether it is general or special, joint or several, absolute or qualified, arises from title or from possession. The particular ownership of the property stolen does not fall within the definition, and is not of the essence of the crime. Neither the legal nor moral quality of the act is affected by the fact that the property stolen, ■ instead of being owned by one or by two or more jointly, is the several property of different owners. The gist of the offense is the felonious taking or appropriation. The grade of the offense is determined by the value of the property taken. The time and place of the taking and the ownership of the thing taken must be alleged in the information, not to give character to the act of taking or appropriation, but merely by way of description. The fraud is against the owner; but the crime, of which the fraud is one ingredient, is against the state, and not against the owner, owners or ownership. The prosecution is conducted in the name and by the authority of the state. The owner of the property stolen is not a party thereto.”

Pablo Sausedo, a camp-tender in the employ of the defendant, at the time of the alleged larceny, testified that defendant’s sheep were sheared at the Paragon pens in June, 1910, and branded— the wethers with a bar brand in black paint, and the ewes with a blotch brand in red paint; that all of defendant’s sheep were branded in the same way; that after the sheep were sheared and branded, he and defendant’s herder Henry Chapman, started to drive the sheep to defendant’s lower or King Gibb ranch; that when about two miles from the shearing pens some of defendant’s sheep escaped from them; that he went to hunt for them and when found they were mixed with other sheep; that he did not undertake to separate them but drove all the sheep to defendant’s band, which was then in charge of Chapman; that he and Chapman took the sheep, including those he had picked up, to defendant’s lower ranch; that he told the defendant about the strange sheep being in his band; that he and defendant counted and separated the sheep, turning the defendant’s own sheep onto the range and retaining the strange sheep in a pen; that he asked defendant what he was going to do with these strange sheep, and defendant replied that he was going to keep them, and at defendant’s directions he (Sausedo) held the sheep and defendant branded them, defendant first shearing off the green paint brand from the sheep having that brand, and using, for the purpose of branding, a tomato can and black paint, making a large, black blotch brand which was put on where the original brand had been; that as to the strange sheep branded with the quarter circle, the new brand was simply placed over the original brand; that defendant directed him to gather up the painted wool sheared off and burn it, which he did, and further directed him to destroy the can and paint left, but instead he put them away and afterward they were turned over to the officers.

The court instructed the jury that Sausedo was an accomplice, [12] and, whether right or wrong, this instruction became the law of the case, and it was necessary that the witness Sausedo be corroborated by other evidence which of itself tended to connect the defendant with the commission of the crime charged. (Rev. Codes, sec. 9290; State v. Stevenson, 26 Mont. 332, 67 Pac. 1001.) To recite all the corroborating testimony would not [13] serve any useful purpose. ¥e content ourselves with saying that we think it amply sufficient to meet the requirement of the statute. Frank Marques, a witness for the state, testified that after the commission of the alleged larceny, the defendant gave him $20 and asked him to induce Sausedo to leave the country so that he' could not be used as a witness against the defendant, and in that conversation defendant said that it was the first time that he had ever taken sheep and branded them; that if Sausedo was away he would be released; that if Marques needed more money, to tell the defendant; that afterward when he (Marques) reported to defendant that he would not comply with defendant’s request, defendant then asked Marques to leave the country so that he could not be used as a witness; that defendant’s wife knew of this second conversation. It is pertinent to remark that although defendant and his wife were both witnesses for the defendant, neither denied anything told by the witness Marques. Aside from the testimony given by this witness, there is a very sharp contradiction in the evidence throughout. But if the testimony given by the witnesses for the state be believed — as it must have been by the jury — then the guilt of the defendant was established beyond any doubt.

Rehearing denied January 25, 1912.

We do not find 'any reversible error in the record. The judgment and order are affirmed.

’Affirmed.

Mr. Chief Justice Bbantly and Mr. Justice Smith concur.