McFetridge v. State

• Decision Date: 23 December 1924
• Docket Number: 1159
• Citation: 231 P. 405,32 Wyo. 185
• Parties: McFETRIDGE v. STATE [*]
• Court: Wyoming Supreme Court

231 P. 405

32 Wyo. 185

McFETRIDGE v. STATE ^[*]

No. 1159

Supreme Court of Wyoming

December 23, 1924

Rehearing Denied 32 Wyo. 185 at 198.

ERROR to District Court; Laramie County; WILLIAM A. RINER, Judge.

Charles D. McFetridge was convicted of larceny and he brings error.

Affirmed.

James W. Gault and Clarence A. Swainson for plaintiff in error.

The burden of proof was upon the state to prove that larceny was committed; that it was committed in Laramie County, Wyoming and that it was committed by defendant, 16 C. J. 529, 26 F 425, 39 Mont. 506, 104 P. 513. The Court will reverse if the evidence is insufficient; People v. Orin, 188 P. 1114; Thornell v. People, 11 Colo. 305; Walker v. State, 41 So. 176. In larceny, the Corpus Delicti has two elements, 1st, that the property was lost by the owner and, 2nd, that it was lost by felonous taking. Dalzell v. State, (Wyo.) 53 P. 297; Jefferis v. State, (Ala.) 72 So. 207; People v. Cahill, 106 P. 115. Mere possession of recently stolen property creates no presumption of guilt. State v. Lummis, 129 Idaho 141; State v. Boneen, 143 P. 134; State v. Potello, (Utah) 119 P. 1022; State v. Borgis, (Ida.) 144 P. 789; Robinson v. State, 18 Wyo. 230; Sanders v. State, 52 So. 417; State v. Belchary, 136 Mo. 135. The Court erred in admitting the evidence of witness Glasspool; his testimony as to identity was incompetent; Jones Evidence Vol. 2, Section 361.

David J. Howell, Attorney General and L. C. Sampson, Deputy Attorney General, for defendant in error; Kinkead, Ellery & Henderson, of counsel.

Only four alleged errors are discussed in the brief; the evidence was sufficient to sustain the verdict; State v. Woods, 51 Mont. 193, 169 P. 39. The Corpus Delicti was established by direct evidence and was sufficient to warrant the conviction of defendant. Dalzell v. State, 7 Wyo. 454; Curran v. State, 12 Wyo. 553. The venue of the crime was also established by the evidence. Tierney v. State, 111 Ala. 174, 20 So. 597; Brooks v. People, 23 Colo. 375, 48 P. 502; Harlan v. State, 134 Ind. 339, 33 N.E. 1102. Defendant's possession of the animal was admitted; the reasonableness of his explanations were questions for the jury. State v. Brinkley, 55 Ore. 134, 104 P. 893; McDonald v. State, 56 Fla. 74; State v. Bowen, 45 Utah 130, 143 P. 134. Where portions of the testimony of a witness are irrelevant and incompetent, it is not error to overrule a motion to strike all of it; Harris v. State, 23 Wyo. 487; Metz v. Willets, 14 Wyo. 511; Dickinson v. State, 18 Wyo. 440; Cornish v. Ter., 3 Wyo. 100; a judgment will not be reversed for insufficiency of evidence if there be evidence to support it. Jones v. State, 26 Wyo. 293. The Corpus Delicti may be proven by circumstantial evidence. Messel v. State, (Ind.) 91 N.E. 565; Frye v. State, (Okla.) 219 P. 722; Richey v. State, 28 Wyo. 117; McAdams v. State, 23 Wyo. 294; Possession of recently stolen property, supplemented by other evidence inconsistent with an honest possession, should be submitted to the jury. State v. Sparks, 40 Mont. 82; Ammons v. State, (Okla.) 219 P. 426.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice

The defendant Charles D. McFetridge was convicted of larceny, and he appeals.

The conviction was for stealing, in Laramie County, Wyoming, on or about October 1, 1921, one pure-bred Hereford cow bearing a tattoo-brand with the number 105 in the ears as well as on the horns. The defendant admitted that the animal in question was in his possession, on the so-called McFetridge ranch in the state of Colorado, about 22 miles south of where it had been kept by its owner, commencing from about the middle of October, 1921, up to about January 1st, 1922, when he sold said ranch to Harry E. Miller and at which time he left said animal, together with nine other Hereford cows, on said ranch in possession of said Miller. The animal in question was returned to its owner in the latter part of January, 1922. The defendant explained his said possession in substantially the following manner: On October 14, 1921, he was told by Mr. Wolf that the Hereford cattle referred to were grazing along Willow creek in the neighborhood of his ranch. He knew nothing of them prior thereto. On the following day he was riding toward Ault, and when about three or four miles south of his ranch, he met a man in a Ford car who stated that his name was I. E. Smith. He had not seen or heard of him before. Smith asked defendant whether he had seen anything of the cattle in question. Defendant answered that he had not seen but heard of them. Smith thereupon said he had lost twelve head; that he would pay defendant $ 2.50 per head for all he gathered of them; that he would be up to see defendant in a few days; that he had disposed of his holdings in Carpenter, Wyoming; that he was moving to California, and that he thought that the cattle would be wandering back from the direction of Greeley to Carpenter. Defendant again met said Smith some ten days or two weeks later on the road south of Nunn; Smith then asked him to buy the cattle, but defendant stated that he could not do so. It was then agreed between them that defendant should keep said animals--possibly till the following April--for one dollar per month per head. Other evidence in the record shows that substantially the same explanation thus made by defendant as to how he came to have possession of the animals in question was made by him several times prior to the latter part of January, 1922. The witness Wolf testified that he told defendant, about October 14, 1921, that the Hereford cattle in question were grazing on Willow Creek, and that defendant's demeanor indicated that he knew nothing of them. The wife of defendant corroborated the latter as to what took place on the road south of Nunn, and the defendant's testimony was corroborated in minor particulars by other witnesses. Defendant, when on the witness stand, but not before, produced a letter, introduced as Exhibit B, mailed at Carpenter, Wyoming, dated November 15, 1921, addressed to defendant at Ault, Colorado, and received by him there. It is claimed that the defendant wrote this letter himself and it will again be referred to later. It purports to be signed by I. E. Smith. An erasure, however, had been made where "S" was written, warranting an inference that the document was not signed by any man whose real name was I. E. Smith. The document is poorly written, but in so far as we can decipher it, it reads, aside from the address and signature, as follows:

"I have not been able to get down there. Have you heard any more of those Herefords. I expect to go to Cal. for the winter and I am have a sale, and if you care to buy these herefords I and see you. I am just about cleaned out and may be we can make a deal."

The defendant at the same time also produced another letter, introduced as Exhibit C, dated November 5, 1921, signed by defendant, directed to I. E. Smith, Greeley, Colorado, duly mailed but returned to defendant unopened. The letter was as follows:

"When do you expect to come after your cattle. I have found ten head. I am moving some of my cattle to Ault soon and if you want yours brought down let me know soon."

A like letter, so defendant testified, was written to I. E. Smith at Carpenter, and though the record is not clear thereon, was apparently not returned. Defendant admitted that he had not seen said Smith since said time and had not heard from him. He denied the charge against him and a number of witnesses testified to his reputation for honesty.

We thought it best to state the substance of the defendant's evidence first, so that the evidence on behalf of the state may be judged in the light thereof and in connection therewith. The following facts, or inferences, to prove the venue, corpus delicti, and the identity of the person committing the crime in question appear from the record:

The animal in question was, prior to its disappearance about October 1, 1921, kept, together with other Hereford cattle to the number of about 1500, in a pasture on the so-called Hereford ranch about 7 miles east of Cheyenne, in Laramie County, Wyoming, and about ten miles north of the northern line of the State of Colorado. The pasture was well fenced and the fence kept in good condition. Three ordinary wire gates gave access to and from the pasture. These were kept closed, though able to be opened at will. The animal in question was shown to be unusually gentle, giving in connection with the evidence as to the condition in which the fence was kept, rise to the possible inference that it would not have voluntarily strayed from the herd. The animal was neither sold nor authorized to be sold by its owner. It was present in the pasture in question about September 1, 1921, at a tally then made of the herd, but was found to be absent at another tally made about November 1st, 1921. About 4:30 p. m. on October 1st, 1921, the animal in question was seen by the witness Clyde Glasspool at the so-called Reynolds ranch in Colorado, about 22 miles south of the Hereford ranch. The Reynolds ranch was then, as the evidence tends to indicate, temporarily in the control and possession of the defendant. The witness Clyde Glasspool, driving through a gate of this ranch, saw three men at or near the corral of that place, about 300 yards distant from the gate. These men almost immediately, without approaching the witness, and apparently under suspicious circumstances, left the corral, two of them riding away in a gallop, and one of them driving away in a Chevrolet automobile. The witness did not know the men that rode, but thought that the man in the Chevrolet car was either the defendant or one Don Straight--in any event a man of a stature...