Richey v. State

• Decision Date: 18 October 1921
• Docket Number: 1015
• Citation: 201 P. 154,28 Wyo. 117
• Parties: RICHEY v. STATE
• Court: Wyoming Supreme Court

201 P. 154

28 Wyo. 117

RICHEY v. STATE

No. 1015

Supreme Court of Wyoming

October 18, 1921

Rehearing Denied March 21st, 1922, Reported at: 28 Wyo. 117 at 137.

ERROR to the District Court of Lincoln County; HON. JOHN R. ARNOLD Judge.

Annie Richey was convicted of larceny and brings error.

Affirmed.

C. E Melvin, J. L. Mullings and M. E. Wilson, for plaintiff in error.

The court erred in not sustaining defendant's motion to quash the information on the ground that it charged several offenses in one count. (6186 Comp. Stats. 1910. Ackerman v. State, 7 Wyo. 504; 54 P. 228; Joslyn v. State, 128 Ind. 160; 27 N.E. 492; State v. Bliss, 68 P. 87.) The information is defective in failing to state whether Davidson Brothers is a partnership or a corporation, and the same is true of Lincoln Livestock Company, another alleged owner. (State v. Clark, 223 Mo. 48; 122 S.W. 665; 18 Ann. Cas. 1120.) The court erred in permitting inspection of hides removed from cattle at South Omaha, there being insufficient evidence of their identification. (State v. Potello, 40 Utah 56; 119 P. 1023.) Shipping records, or records kept by persons in charge of stock yards should not be treated as primary evidence, and the action of the court below in doing so was prejudicial to the defendant. (1 Morewitz Corp., 40; 3 Elliott Ev. 1945; Railroad v. Cunnington, 39 O. St. 327; Kusaw v. M. Co., 75 F. 860; Terry v. Bank, 93 Ala. 599; 9 So. 229; Jewett v. Ry. Co., 219 Mass. 531; 107 N.E. 434.) It was error to receive evidence as to other alleged crimes or the possession of other property claimed to have been stolen. (17 R. C. L. 775; Clampitt v. U.S. 6 Ind. 92; 89 S.W. 666; Paris v. U. S. 260 F. 529; 16 C. J. 586; Baxter v. State, 81 O. St. 167; 110 N.E. 456.) The verdict is not sustained by sufficient evidence and the trial court erred in refusing to grant a new trial. (Kester v. Wagner, 22 Wyo. 512; 156 P. 748; Felton v. Spiro, 78 F. 576.) The word "steal" imports in a more restricted sense what is known as statutory larceny. (Hughes v. Territory, 56 P. 708.) A felonous intent must be shown in larceny prosecutions. (Phelps v. People, 55 Ill. 334; People v. Schultz, 79 Mich. 315; Wilson v. People, 39 N.Y. 459.) There was no evidence that defendant stole the cattle in question or that they were stolen by anyone. (State v. Potello, 40 Utah 506.) Defendant's possession of them would not establish prima facie evidence of guilt. (17 R. C. L. 78.) No presumption of theft or illegality arises from showing that a defendant has the possession of property which has been lost. (Jones v. State, 183 P. 745.) The court erred in giving instruction No. 3 as the jury might have inferred from it that evidence of a brand was prima facie evidence of ownership which required defendant to disprove the ownership. (State v. Barretta, 47 Utah 479; 155 P. 343 and authorities therein cited. (In State v. Cason, 167 P. 283 such an instruction was approved on the ground that the form had been approved in Territory v. Meredith, 14 N. Mex. 298, but no instruction of the kind appears to have been passed upon in the latter case. Instruction No. 4 was erroneous as to the proof required of the charge of the offense. (State v. Romeo, 42 Utah 46; 128 P. 536.) Instruction No. 6 should not have been given. Instruction No. 8 1/2 was an attempt to define circumstantial evidence but mis-stated the rule. (3 Ency. Ev. 92.) To justify inference of guilt, circumstantial evidence must exclude every other reasonable hypothesis. (State v. Brady, 91 N.W. 801; Pa. R. R. Co. v. Nelson, 259 F. 156; Lopez v. Campbell, 163 N.Y. 340; Everett v. People, 216 Ill. 478; State v. Hudson, 66 S.C. 394; 34 S.E. 968.) It is the duty of the trial court to instruct as to the nature and effect of circumstantial evidence. (1 Starkie, Ev. 789.) Instruction No. 9, defining reasonable doubt, was in the identical form given in the case of State v. Robinson, 18 Wyo. 216; 106 P. 24, where it was condemned by this court. A plainer case of prejudicial error could not exist. The Robinson case has been cited with approval in two Colorado cases. (Satkison v. People, 138 P. 26; Highley v. People, 177 P. 975.) Instruction No. 9 1/2 clearly invades the province of the jury; the verdict does not find the defendant guilty of stealing neat cattle and does not find the value of the property stolen nor the number stolen. (Merrill v. State (Wyo.) 136 P. 795; Thompson v. State (Wyo.) 130 P. 850.)

W. L. Walls, Attorney General, and Vincent Carter, Deputy Attorney General, for defendant in error.

Numerous assignments made in the petition in error are not discussed in the brief of plaintiff in error, and must be considered abandoned. (Rule No. 14 S.Ct. Boswell v. Bliler, 9 Wyo. 277; Reardon v. Horton, 16 Wyo. 363.) The trial court, in overruling the motion to quash, was supported by the case of Ackerman v. State, 7 Wyo. 504. The Indiana authorities are not in point. (Furnace v. State, 153 Ind. 93.) The question of ownership of the stolen property was not raised in the motion to quash and was waived. The hides brought from Omaha were clearly identified. The shipment of 32 head of cattle by the accused was admitted. Plaintiff in error was not prejudiced by the introduction of records of stockyards and transportation companies. Evidence as to the possession by the accused of other branded cattle was properly admitted for the reason that it tended to establish a relative fact, the misbranding of cattle. (17 R. C. L. 75.) The case of Paris v. U.S. 260 F. 529 cited by plaintiff in error is entirely different on the facts and cannot fairly be considered an authority here. The evidence was clearly admissible to show misbranding by defendant and was not offered for any other purpose and was intended to prove that defendant was pursuing a course of the same acts. (State v. Myer, 82 Mo. 588.) As to the instructions the evidence shows that a general exception was taken to all of the instructions without specifying any particular instruction, so that if any instruction be good, the exception fails. (Palmer v. State, 9 Wyo. 40, Dickerson v. State, 18 Wyo. 440. Bronson Instruction, Jrs. 161.) A careful examination of the instructions given show them to be correct statements of the law. Take for example, instruction No. 6 which was supported by Turner v. State, 102 Ind. 425. Instruction No. 8 1/2 defining circumstantial evidence is a fair definition of the term. The instruction referred to in the Utah case of State v. Barretta, 47 Utah 479, 155 P. 343 seems to be entirely different. (Cunningham v. State, 56 Neb. 69.) Instruction No. 9 1/2 is a fair statement of the law. Where a verdict is sought to be set aside on the ground that it is contrary to law, the complaint relates to the law as given by the court in its instructions to the jury, and we find nothing in the record here showing that the verdict was contrary to the law as set forth by the judge in his instruction. All fair intendments will be made to support the verdict. (1 Bish. Cr. Pro. 1005; State v. Ryab, 13 Minn. 370; Ackerman v. State, supra.) The record discloses that defendant was ably defended and every effort made to protect her rights, and there appears no reason why the verdict and judgment should not be affirmed.

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

OPINION

KIMBALL, Justice.

Annie Richey was convicted of larceny of neat cattle, and brings the case here in error.

The information, with the formal parts omitted, charges that:

"Annie Richey and Charles King, late of the county aforesaid, on the 23rd day of July, A. D. 1919, at and in the county aforesaid, then and there being, did then and there unlawfully and feloniously steal, of the personal property of Davision Brothers, seventeen head of neat cattle, then and there of the value of $ 50.00 each; two head of neat cattle of the personal property of William Spencer, then and there of the value of $ 50.00 each; four head of neat cattle of the personal property of Lincoln Livestock Company, then and there of the value of $ 50.00 each, and two head of neat cattle of the personal property of Ernest Corless, then and there of the value of $ 50.00 each."

Defendant King was found not guilty, and when hereinafter we mention the defendant we refer to plaintiff in error only.

A motion to quash the information upon the ground that it charges in one count four separate and distinct offences was denied by the court, and this ruling is assigned as error. We construe the information to charge that all the cattle mentioned in it were taken at the same time and place, and, therefore, it charges but one larceny. This conclusion is unaffected by the circumstance that it appears that the cattle stolen were not all owned by the same person or company. (Ackerman v. State, 7 Wyo. 504, 54 P. 228; 17 R. C. L. 54; note to State v. Sampson, 42 L.R.A. 967.) There is little, if any, authority to the contrary. The case of U.S. v. Beerman, 5 Cranch C.C. 412, 24 F. Cas. 1065 F. Case No. 14560 was expressly disapproved in State v. Ackerman, supra. Counsel rely upon State v. Bliss, 27 Wash. 463, 68 P. 87 and Joslyn v. State, 128 Ind. 160, 27 N.E. 492, 25 Am. St. Rep. 425, but neither case can be accepted as authority in support of the motion.

It appears from State v. Makovsky, 67 Wash. 7, 120 P. 513, that the Bliss case has been expressly overruled, and by Furnace v. State, 153 Ind. 93, 54 N.E. 441, the Joslyn case, if not overruled, has been limited, as an authority, to those cases where the information does not charge that the different articles of property were stolen at the same time. The motion to quash was properly denied.

It is argued that the information is insufficient because it fails to allege that Davision Brothers was a co-partnership...