Richey v. State

• Citation: 28 Wyo. 117,205 P. 304
• Decision Date: 21 March 1922
• Docket Number: 1015
• Parties: RICHEY v. STATE
• Court: United States State Supreme Court of Wyoming

205 P. 304

28 Wyo. 117

RICHEY v. STATE

No. 1015

Supreme Court of Wyoming

March 21, 1922

Error to District Court, Lincoln County; John R. Arnold, Judge.

28 Wyo. 117 at 137.

Original Opinion of October 18, 1921, Reported at: 28 Wyo. 117.

Rehearing Denied.

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

OPINION

ON PETITION FOR REHEARING

POTTER Chief Justice.

The judgment of the district court upon a verdict finding plaintiff in error, defendant below, guilty of larceny of certain neat cattle having been affirmed by this court (see 201 P. 154), she has filed a petition for rehearing, stating as grounds therefor that the conclusions of this court are erroneous in the following particulars:

(1). In holding the evidence sufficient to sustain the verdict. (2). In sustaining the rulings of the trial court admitting the testimony relating to the discovery upon the range of other cattle upon which the brand of Davidson Bros. had been altered in the same manner as the brands upon the Davidson cattle alleged to have been stolen, and that the defendant claimed them as her cattle. (3). In refusing to review the instructions complained of, for want of proper exceptions particularly instructions numbered 8 1/2, 9, and 9 1/2.

The case was ably presented at the original hearing, both by brief and oral argument, and all the points now insisted upon in support of the grounds assigned for a rehearing were then urged as grounds for reversal. And they were considered by the court and discussed as fully as deemed necessary in the former opinion. We have, however, carefully considered the petition and the brief filed in its support, but are not convinced that a rehearing might result in a change of our views upon any of the questions presented, or the conclusion that the judgment should be affirmed.

The point upon which it is again contended that the verdict is not sustained by sufficient evidence is that there is no evidence of a taking of the cattle within the meaning of the larceny statute, for the reason, as counsel contend, that it appears from the evidence that the cattle went upon the lands of the defendant from the open range, whereby she obtained possession of them innocently, so that upon the principle that there must be an intent to steal at the time of the taking, in order to constitute the crime of larceny, the crime was not established by the evidence in the case. But, as intended to be and as we think was shown in the former opinion, there is nothing in the case rendering the principle relied on applicable.

While it appears from the evidence that cattle of various owners upon the open range in the vicinity of the defendant's ranch would occasionally, or perhaps habitually, drift or stray upon certain lands belonging to that ranch, in search of water which was accessible there, it does not appear that any of the cattle alleged and found to have been stolen, or any cattle of other owners, came into the possession of the defendant in that manner, even if it might be possible, under the law, that she could have obtained possession of such cattle lawfully or innocently, by reason of the fact that they had strayed upon such lands; a point which, as stated in the former opinion, we are not willing to concede, though it is a question which it was and is not necessary to decide in this case. And it may be said in addition to the facts stated in the former opinion in discussing the question that instead of claiming that she had innocently acquired possession of the cattle in question she expressly denied in her testimony that she had ever shipped or had ever seen the cattle from which the eight hides produced by the prosecution had been taken, and which were the cattle claimed to have been stolen, but that the cattle shipped by her at the time in question were her own, that she had handled them since they were calves, and rode among them every day. And she also testified that the 32 head so shipped by her were all her cattle, and that there were no Davidson cattle or cattle of any other owner named in the information in her said shipment.

With reference to the second ground of the petition, challenging the correctness of our conclusion as to the admissibility of the testimony concerning other Davidson cattle, showing a similar change of brands discovered on the range in the vicinity of the station from which it was claimed by the prosecution the cattle alleged to have been stolen had been shipped by the defendant, and soon after that shipment, we think our reasons for holding the testimony to have been properly admitted were sufficiently stated in the former opinion and we remain of the opinion that the point was correctly decided. But it seems to be contended in the present brief that the fact that the defendant had brought a suit in replevin for the possession of such other cattle, after the discovery of them upon the range by the witness Davidson and his taking possession of them, rendered the testimony inadmissible for the reason that the ownership of said cattle was thereby shown to be in dispute in a civil action pending in the district court at the time of the trial of this case. The fact that such replevin suit had been brought was not mentioned in the former opinion for the reason that it was not deemed material since it was stated that the defendant claimed such cattle as her own; and it is not now perceived that the fact that the defendant had brought such replevin suit, which was first testified to by the witness Davidson in connection with his statement that the defendant claimed the cattle as her own, could operate in any way to render the testimony objected to inadmissible. Whether she replevied them or not, the fact that she claimed to own them would present the fact of a dispute as to the ownership, but clearly, we think, that would not destroy the admissibility of the testimony. Without the fact that the defendant claimed the other alleged misbranded cattle the evidence would not have been admissible, for the cattle were not shown to have been found in her immediate personal possession, but at large upon the range.

The fact is, as shown by the record, that this testimony was offered for the purpose of showing that other cattle bearing the Davidson Brothers brand, changed in the same manner as the brand upon the alleged stolen cattle, were claimed by the defendant as her own cattle. It appears that the witness Davidson was asked whether or not on or about July 25, 1919 (the date of the defendant's shipment, which it was claimed included the cattle alleged to have been stolen) he discovered any cattle on the range in the vicinity of Fossil (the station from which said shipment was made) with the D Bar D brand thereon (the Davidson brand) altered, as he had found it altered on the alleged stolen cattle. The question was objected to generally as incompetent and irrelevant and for the further reason that it was an attempt to connect the defendant with a distinct and separate offense. Thereupon the prosecution offered to prove that the defendant claimed the ownership of at least one head of cattle found within a day or two after said shipment with the Davidson brand altered similar to the alteration found on the hides of the alleged stolen cattle.

The offer being objected to as an undertaking to prove a separate offense, the attorney for the state then said: It is offered as a circumstance to show that the defendant claims to be the owner of cattle where the said Davidson brand had been changed. The objection being overruled the witness answered: "Yes, sir, I did," and he further said that he had found four head out there on the range with D Bar D changed; that they were left in "our charge" at the ranch by the sheriff; and that the defendant had claimed these cattle as her own, and had replevined them. It further appeared that the Davidsons, upon giving a redelivery bond in the replevin action, had retained possession of the cattle.

It is argued in this connection that the question of the title to the cattle being in dispute and litigation between the Davidsons and the defendant, the ownership could not be determined on the trial of this case. Conceding that to be true, it does not destroy the relevancy of the testimony to show that other cattle claimed by the defendant as her own had been found at or about the time of the shipment of the cattle claimed to have been stolen, which showed the same change of the Davidson brand as that shown upon the alleged stolen cattle. The defendant, as was her right, met that evidence by testifying that the new brands upon those other cattle were placed over old brands of her own, and not over a Davidson brand, and in this she was corroborated by another witness, who identified the cattle, after having seen them at the Davidson ranch, by describing them other than by the brands, as cattle belonging to the defendant which he had cared for the winter before, and that the Davidson brand was not upon said cattle, but that they bore at that time a brand which was being used by the defendant, over which the new brands appeared to have been placed. All the testimony on this question was for the consideration of the jury, together with the other evidence in the case, in determining whether the defendant was or was not guilty of the crime charged in this case.

It is to be remembered that the theory of the prosecution and the effect of its evidence was that the Davidson cattle alleged to have been stolen by the defendant were shipped by her from Fossil, in this state, to South Omaha, Nebraska, after the Davidson brand upon each head of said cattle had been recently changed, and the material point was whether such cattle had been misbranded and shipped by the defendant. And...