McAdams v. State

• Citation: 23 Wyo. 294,149 P. 550
• Decision Date: 22 June 1915
• Docket Number: 815
• Parties: McADAMS v. STATE
• Court: United States State Supreme Court of Wyoming

149 P. 550

23 Wyo. 294

McADAMS v. STATE

No. 815

Supreme Court of Wyoming

June 22, 1915

ERROR to the District Court, Weston County; HON. CARROLL H PARMELEE, Judge.

William McAdams was convicted of the crime of larceny and brings error.

The facts are stated in the opinion.

Affirmed.

Allen G. Fisher and William P. Rooney, for plaintiff in error.

The information did not state a crime punishable by the laws of the state. The witness, Yemington, by his own admissions, was an accomplice and his testimony was not corroborated upon any material fact essential to constitute the crime of larceny there was no proof that the taking by defendant was with felonious intent to steal. Yemington delivered the property to defendant upon a public highway in the daytime. The essential ingredients are asportation, non-consent of the owner, and the felonious intent to convert the stolen property to defendant's use. (LaDeaux v. State, 74 Neb. 19; Cohoe v. State, 79 Neb. 188; Mead v State, 25 Neb. 444.) There was no proof that the taking was with the consent of the owner. (1 Phillips on Evidence (5th Ed.), 635; Horton on Criminal Evidence, Sections 623, 625, 632, 673 and 862; Bubster v. State, 33 Neb. 664; Perry v. State, 44 Neb. 414.) The court erred in failing to instruct concerning the effect of possession of the property. (Dobson v. State, 46 Neb. 250.) The court erred in failing to define and to show the necessity of proof of felonious intent. Such an instruction was requested and refused. (Dobson v. State, 61 Neb. 584; Barnes v. State, 40 Neb. 545.) This was prejudicial even though another instruction may include the element omitted in the one by which the court attempts to state the essential ingredients. (Richards v. Halstead, 44 Neb. 606; Barr v. State, 45 Neb. 458.) The court did not caution sufficiently against the testimony of an accomplice. (Lamb v. State, 40 Neb. 316; Home Fire Insurance Co. v. Decker, 55 Neb. 349; Sandage v. State, 61 Neb. 242; Kastner v. State, 58 Neb. 767.) There was a variance between the allegation of ownership and the proof. The court should have cautioned the jury to scrutinize more closely the testimony of informers, detectives and other persons interested, than the testimony of persons wholly disinterested. (State v. Miller, 9 Houston (Del.) 564; Clark v. State, 5 Ga.App. 603; Blake v. Blake, 70 Ill. 618; Rivers v. State, 97 Ala. 72; People v. Whitney, 105 Mich. 622; People v. Loris, 131 A.D. 127; Ford v. State (Ga.), 78 S.E. 782; Heldt v. State, 20 Neb. 497.)

D. A. Preston, Attorney General, for defendant in error.

The testimony of Yemington is corroborated; but, from the evidence of Yemington himself and of the sheriff, it shows that Yemington was merely a feigned accomplice and not within the rule requiring corroboration. (1 R. C. L. 159; State v. Hoxsie, 2 A. S. R. 838; State v. McKean, 14 Am. Rep. 530; State v. Douglas, 99 A. S. R. 688, 98 A. S. R. 158.) If there be a conflict in the evidence as to whether a witness is an accomplice it is a question for the jury under proper instruction. (People v. Kraker, 72 Cal. 459; State v. Schlagel, 19 Ia. 169; State v. Carr, 28 Or. 389; Williams v. State, 33 Tex. Cr. Rep. 128.) The instructions numbered 9 and 10 were therefore proper. The surrounding circumstances and accompanying acts of defendant show a felonious intent to steal. The Nebraska authorities cited by plaintiff in error are based upon facts wholly different from the facts in the case at bar. The non-consent of the owner of the stolen property need not be shown by the owner's testimony, but may be shown by other evidence. In the present case, it was shown by defendant in his cross-examination of the witness, Yemington, and he is bound thereby. No theory of the defense could be seriously considered as being consistent with the defendant's good faith in taking this stock. Failure to instruct concerning the effect of possession of stolen property was not assigned as error. The model instruction alleged by plaintiff to be set forth in the case of Lamb v. State, 40 Neb. 316, regarding the testimony of accomplices, was in fact given in the present case. There is no evidence that anyone was employed to hunt up evidence, hence an instruction as to the credibility of persons employed in looking up evidence was unnecessary. It was clearly proven that Mrs. Thompson was the owner of the stolen horses.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

William McAdams, who was defendant below, was charged and convicted of the crime of the larceny of two horses of value, and which the jury found to be of the value of forty dollars, the personal property of Elizabeth Thompson, and brings error.

1. It is contended that the evidence is insufficient to support the verdict, and that the court erred in overruling defendant's motion for a directed verdict. In support of this contention it is argued that the evidence upon which the state relied for a conviction, in so far as any material fact or essential ingredient of the crime charged is concerned, consisted of the uncorroborated testimony of an accomplice. The evidence of Yemington, the claimed accomplice, was to the effect that early in October, 1913, he and the defendant met in Newcastle, Wyoming, and had several conversations about stealing live stock, and that he, Yemington, told him of an opportunity to steal some live stock in the vicinity of his ranch; that Yemington communicated the substance of these conversations to the sheriff and the evidence of the latter and other witnesses is to the effect that he was advised by the sheriff to go ahead and try and catch McAdams in the theft of live stock. That in the afternoon of October 7th they left Newcastle and went about eighteen or nineteen miles south to Yemington's homestead in Weston County, Wyoming, where he was then and had been living for eight years prior thereto. According to the testimony of Yemington, the next morning, that is to say on October 8th, they went out on the open range and in Weston County, State of Wyoming, rounded up some mares, among which were two bearing the Shipwheel brand, and which mares were followed by two unbranded colts which were owned by Mrs. Elizabeth Thompson, and separated the mares from the colts, took the latter and drove them into Yemington's corral and partially halterbroke them and on October 9, took them south as far as Cheyenne River and crossed the river and put them in a pasture belonging to one Zerbst. Yemington says that from this point he returned to Newcastle, leaving the colts in the possession of defendant and Zerbst, and in the latter's pasture, and told the sheriff of what had occurred. He also testified that Mrs. Thompson was at his ranch on the 13th of October with the sheriff making inquiry as to where the colts were. The defendant testified that the mares and colts were in Yemington's corral at the time that they reached the ranch when they went out from Newcastle; that the mares were branded with the Shipwheel brand and that Yemington told him he owned the mares; that he bought the colts from Yemington in good faith for and upon an agreed price, part of which he had paid Yemington before leaving Newcastle; that he went out to Yemington's place to take a look at the colts before he finally closed the deal; that they were to be delivered at Zerbst's ranch and that they were satisfactory and he purchased them, and that he helped Yemington to lead and drive the colts to Zerbst's ranch and put them in the latter's pasture. The witness Sabin was sworn as a witness and testified on behalf of the state that afterward and in October he was at Zerbst's ranch when defendant and Zerbst ran in about eight head of colts and branded them and in which branding he assisted and that three of the colts were branded with a "fleur de lis" and at the time of such branding defendant told him he got them on South Beaver. The witness Quick testified that he was the deputy sheriff and that he saw the colts in Zerbst's pasture and that they had been freshly branded and he helped to bring them from the pasture to Newcastle when they were placed in Harlow's barn. Mack Barber testified that he was in the employ of Elizabeth Thompson during August, September and October, 1913, in riding the range and identified the colts and mares which had in the meantime been brought in from the range as the property of Mrs. Thompson, for whom he had rode the range. The sheriff testified that he went to Zerbst's ranch, accompanied by the witness Quick, who was his deputy, and he inquired of Zerbst and defendant, who were both at the former's place, if there were any colts in the pasture and both answered in the negative, whereupon he searched the pasture, found the colts in controversy, brought them up from the pasture and inquired of both defendant and Zerbst if they owned them and they both answered no. After the state rested its case the defendant filed his motion for a directed verdict, which the court overruled. The defendant testified that he met Yemington at Newcastle a few days before the date of the alleged theft for the first time and that Yemington told him he was hard up and needed money and that he, Yemington, said he had some colts at his ranch that he would like to sell to him and that he paid Yemington five dollars down on the purchase price; that he was in Newcastle from October 1st to October 8th, and on the last day they went out together to Yemington's ranch and took a look at the colts and also at that time saw the Shipwheel brand on the mares. "I supposed the colts were his--he told me they were--and said to me, 'I have a perfect right to sell them,' and he helped to deliver them over to Dick Zerbst's pasture." He further testified...