King v. People

• Decision Date: 05 January 1920
• Docket Number: 9459.
• Citation: 67 Colo. 510,186 P. 521
• Parties: KING v. PEOPLE.
• Court: Colorado Supreme Court

186 P. 521

67 Colo. 510

KING v. PEOPLE.

No. 9459.

Supreme Court of Colorado

January 5, 1920

Department 3.

Error to District Court, Prowers County; A. Watson McHendrie Judge.

Roy King was convicted of larceny of a calf, and he brings error.

Reversed and remanded.

Gordon & Gordon, of Lamar, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and Forrest C. Northcutt, Asst. Atty Gen., for the People.

ALLEN J.

The plaintiff in error was convicted in the district court of Prowers county upon trial, before a jury, under an information charging him with the larceny of one head of neat cattle, of the property of one J. E. Hinton. A motion for a new trial was overruled, and defendant was sentenced to an imprisonment in the penitentiary. He brings the cause here for review.

The plaintiff in error questions the sufficiency of the evidence to sustain the verdict. Relevant to this matter, the record discloses the following situation:

The alleged larceny, according to the information, was committed on March 28, 1918. The testimony of the prosecuting witness J. E. Hinton, was to the effect, among other things, that the animal, alleged to have been stolen, was 'one black steer, a yearling coming two years old,' which he had purchased from one John Wilton on March 12, 1918; that he had taken the animal to his pasture, and on March 28th 'about noon,' found it missing from his premises; and that on the following day the defendant 'came down' and asked the witness if he 'had a black steer gone.' The witness further testified as follows:

'He (the defendant) said he had (the steer) up in his barn and his brand was on it, wanted me to come up and look at the steer, and I and my brother-in-law went up to look at him. * * * He said that the calf was his; he had lost some up there, * * * and he had never found them. * * * He said that Wilton must have got his calf.'

The witness next stated that the defendant retained possession of the calf on that occasion; that later, and during the same week, the witness returned to the defendant's place, and at that time Wilton, who was present, identified the calf as the one he had previously sold to the witness. The defendant, on this latter occasion, still claimed that the animal belonged to him; on this point the testimony being as follows:

'Mr. King (the defendant) said that was--that that was his brand on the calf, and that I couldn't take it home with me; that brand would hold.'

The prosecuting witness further testified that he and the defendant agreed to leave the matter of the ownership of the animal to arbitrators; that each of them chose one arbitrator; that the arbitrator chosen by the defendant 'came over there,' while the one named by the prosecuting witness did not come. The witness admitted that it was the defendant who first suggested the arbitration.

The defendant in his own behalf testified that he was the owner of the backward four quarter circle brand; that he had branded the animal in question on a wet, rainy day in the spring of 1917; that he had at one time owned eight black steer calves, all of which had been produced by poll bull and horned cows; that one of these calves had been lost and that he believed the animal in question was the one which he had lost; that he first saw it on the 27th of March, 1918, coming up to his barn where he was feeding his horses; that the calf resembled the one which he had lost, and he examined the animal to find out whether or not it had his brand on it; that he took the hair off the hide where he expected to find the brand; and that he found what he thought was his brand on the animal.

There are several grounds upon which the plaintiff in error seeks a reversal of the judgment or conviction, but only one of these will now be considered, and the same relates to the trial court's instruction No. 4, which was given to the jury over the objections of the defendant. The instruction reads as follows:

'You are further instructed that the

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