Murdock v. State

• Decision Date: 02 May 1960
• Docket Number: No. 2907,2907
• Citation: 351 P.2d 674
• Parties: William MURDOCK, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 674

351 P.2d 674

William MURDOCK, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 2907.

Supreme Court of Wyoming.

May 2, 1960.

Moran, Hettinger & Leedy, Riverton, for appellant.

Norman B. Gray, Atty. Gen., and W. M. Haight, Asst. Atty. Gen., for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

William Murdock and his wife Jean were charged in three counts with: the taking (under a theft of animals statute) of 67 ewes and 63 lambs belonging to Ben Iturrian, grand larceny of the said ewes and lambs, and altering and defacing the brands of 24 of the ewes and 22 of the lambs. The wife moved for a separate trial, and when the motion was granted, the case proceeded against Murdock. Prior to the submission of the case to the jury, the State voluntarily dismissed the theft of animals count. The jury found the defendant guilty of larceny of the sheep but not guilty of altering and defacing the brands. ¹

As grounds for the appeal, it is urged that the evidence was insufficient to support the verdict, there was prejudicial error in the rullings regarding evidentiary matters, the trial judge was guilty of misconduct which prejudiced the defendant, and there was improper instruction of the jury.

The facts developed at the trial showed that the Murdocks were partners and ran their sheep in an area adjacent to those of Iturrian, several of whose sheep were found in the Murdock flock. Defendant insists that the Murdock sheep and those of Iturrian were inadvertently commingled while the two bands were close together, that he was not then present, but that he later returned and with his wife was making an effort to separate the sheep when the officers arrived.

The State's theory is that Jean Murdock in accordance with her husband's previously stated intention of stealing Iturrian sheep had taken the animals and that the Murdocks had retained them for several days with their own sheep, altering and defacing the brands on several of the animals.

We review the testimony of the witnesses in order to ascertain the merit of defendant's charge that the evidence was insufficient to sustain the verdict as to the larceny.

In early 1958 the Murdocks decided to go into the sheep business and employed an elderly man, Frank Harris, to assist in caring for their sheep. Harris testified that defendant on ten or fifteen occasions had said that he was going to build up his herd to eight or nine hundred 'off of Iturrian and Gerrard.' About the first of May the Murdocks and Harris after shearing began to trail the sheep to the summer range in the vicinity of the old Kindt homestead. Both Mr. and Mrs. Murdock were called out of the State by illness, and during their absence of approximately ten days, the sheep on the trial were tended by Harris and some relatives of the defendant. About the middle of June, Harris quit, apparently on account of illness, and Jean Murdock took charge of the sheep. On Wednesday, June 25, Leon Iturrian, the fourteen-year-old son of Ben Iturrian, was in charge of his father's sheep on the Sweetwater near the Kindt homestead. His sheep had gone around a hill out of sight, and as he came to turn back the leaders, he saw Jean Murdock on horseback apparently pushing some stragglers of her flock back into her main bunch. Afterward he counted his markers and when they were short told his father who the next day, Thursday, June 26, made a count. When Ben Iturrian found that there were 152 head missing, he went to look for them, and about noon drove to the Kindt homestead, parked his jeep, and walked close enough to see that some of his well-branded sheep were with those of the Murdocks in the meadow. He testified, 'I could see naked eye good enough but I could see better with the field glasses.' Later that day, he went back to his home in Riverton. (There is no definite statement regarding Iturrian's activities on Friday, June 27, except a reference to his seeing Jean Murdock.) On the morning of Saturday, June 28, Iturrian took a saddle horse and went to a rock pile about 500 yards from where the sheep were near the Kindt cabin and watched from about 5 a. m. until 7:30 a. m. He saw the Murdocks with a dog pushing the sheep, but they didn't have a corral to work with. About 7:30 a. m. the sheep were turned out, and those belonging to Iturrian started toward his camp. Murdock on a horse went to turn them back. The following morning, Sunday, June 29, Iturrian again went out to the same rock pile on a saddle horse at about five o'clock and saw the Murdocks working the sheep in a sort of corral against the building. With the aid of field glasses, he observed 72 head of his own sheep, some with brands clipped, some of them with blood on their ears where the ear tags had been and one large lamb with its tail cut. At that time he saw Murdock with a pair of sheep shears. That evening, Iturrian went to the sheriff's office and made some report of the matter. On Monday morning, June 30, he with Alfred Kealear, deputy sheriff and brand inspector, and William Logan, the undersheriff, went to the Kindt homestead, arriving there about eight o'clock. Both officers as they came in sight of the Murdocks' camp saw defendant standing in the chute, bending over. Defendant then walked around the barn and came up to talk to them. Logan told defendant he had a warrant for him, and the defendant said, 'Bennie, some of your sheep are mixed up with mine.' At defendant's invitation they went into his trailer for coffee, and when they returned to the corral found a ewe and a lamb in the squeeze chute. The animals bore Iturrian's brand, a green mitten, but the ewe had the upper portion of the brand clipped off, and some clipped wool was found nearby. Logan said, 'Willie, this looks bad, all these sheep in your possession and these brands worked over,' and according to Logan defendant replied, "I didn't do it. It must have been the herder I had."

Mrs. Murdock and Iturrian went for materials to build additional corrals; and the officers, Iturrian, and the Murdocks worked with the sheep--Iturrian doing the actual separating at the chute gate. There were 68 ewes and 63 lambs that belonged in Iturrian's here; 24 ewes and 22 lambs had the brands clipped slickly. The officers later made some further count of the Iturrian sheep and took pictures of certain of these.

Defendant was sworn and testifying in his own behalf positively denied that he had ever told Harris he was going to steal sheep from Iturrian and Gerrard. He said at the time of the mixing of the Iturrian sheep with those of the Murdocks he was some distance away haying at his brother- in-law's ranch and knew nothing regarding the incident until his wife Jean told him; that he had then gone out to the Kindt homestead; that he and his wife tried to work the Iturrian sheep out of theirs; that they had continued to work at this without much success until Monday morning, June 30, when Iturrian and the officers came; that Iturrian said he had come after his sheep and Murdock responded, 'It's just about time.' Defendant positively denied that he had had any shears, that he had clipped any brands, or that he intended to steal any sheep. He said that he was not bending over the chute when the officers came, that he had gone out after breakfast to get his horse, had walked behind the barn, and was crossing the fence.

Defendant's counsel concede that the verdict cannot be disturbed if there is any substantial evidence upon which it can be based ² and that evidence improperly admitted is not ground for reversal unless there is actual prejudice to the defendant. They insist however that there is no evidence to support the jury's verdict finding defendant guilty of larceny. In so arguing it is said, and we think correctly, that to support the conviction there must be a definite showing that defendant performed some act of taking, an asportation, or that he caused or procured Jean Murdock to perform such act; and that he must have done so with the intent to steal. It is urged that Jean Murdock attempted to avoid a mix-up of the sheep; that the defendant did not know that the sheep were together until told by his wife; and that they then made a sincere effort to separate the animals. Counsel go on to discuss the reliance which the State places on the clipping, admit that it is reasonable to believe that there was some irregularity regarding the brands, but challenge that the evidence showed defendant to have done the clipping, and say that, even were it assumed that he did, this fact would not furnish any support for the larceny verdict.

The State, conceding that asportation is essential to a conviction for larceny, urges that the least removal of a thing with the intent to steal it is sufficient even though the article is not taken away. Scott v. Harbor, 18 Cal. 704; State v. Gray, 106 N.C. 734, 11 S.E. 422; Annotation, 19 A.L.R. 724; 32 Am.Jur. Larceny § 17.

An analysis of the argument by defendant's counsel shows that undue emphasis is placed upon the testimony of defendant. It is true that if the jury had believed the testimony of William Murdock, to the exclusion of other evidence submitted, the inevitable conclusion would have been that there had been an inadvertent commingling of the sheep by Jean Murdock without defendant's knowledge and an honest effort thereafter by defendant to separate the sheep and return the strays to the rightful owner. However, there was other evidence which was inconsistent with this viewpoint: the testimony of the herder Harris that defendant had indicated his intent to steal Iturrian sheep; the testimony of Iturrian that he observed his sheep well branded with his own marks in the Murdocks' herd, certain of them being worked by the Murdocks, and later saw the brands clipped on some of them; and the testimony of the officers that they saw defendant bent...