Rowe v. People

• Decision Date: 09 November 1899
• Citation: 26 Colo. 542,59 P. 57
• Parties: ROWE v. PEOPLE (two cases).
• Court: Colorado Supreme Court

59 P. 57

26 Colo. 542

ROWE v. PEOPLE (two cases).

Supreme Court of Colorado

November 9, 1899

Error to district court, Boulder county.

Edward Rowe and George H. Rowe were separately convicted of larceny and both bring error. Affirmed.

The above-named plaintiffs in error were separately charged by information, in the district court of Boulder county, with the larceny of a horse, the property of one Frederick Sherwood. The first counts of the informations, omitting the formal parts, were as follows: '* * * That * * * Rowe late of the county of Boulder and state of Colorado, on the 8th day of August, in the year of our Lord one thousand eight hundred and ninety-eight, at and within the county and state aforesaid, one horse, of the personal goods, chattels, and property of Frederick Sherwood, then and there being found did then and there unlawfully and feloniously steal, take lead, and drive away, and did then and there unlawfully and feloniously deprive the said owner of the immediate possession thereof, and did then and there unlawfully and feloniously apply the same to his own use, with intent to steal the same. * * *' The statute under which the informations were drawn is as follows: 'Any person who shall steal, embezzle or unlawfully kill, sell, drive, lead or ride away, or in any manner unlawfully deprive the owner of the immediate possession of any neat cattle, horse, mule, sheep, goat, swine or ass, or any person who shall steal, embezzle or unlawfully kill, sell, drive, lead or ride away, or in any manner unlawfully apply to his own use any neat cattle, horse, mule, goat, sheep, ass or swine, the owner of which is unknown, * * * shall be deemed guilty of larceny. * * *' Sess. Laws 1891, p. 130. The cases were tried together, and defendants were found guilty. Edward was sentenced to a term of six years', and George to four years and six months', confinement in the penitentiary. To reverse these sentences they bring the cases here on error.

S. T. Horn, for plaintiffs in error.

David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., Dan B. Carey, Asst. Atty. Gen., and Adam C. Patton, Dist. Atty., for the People.

GODDARD J. (after stating the facts).

The first error relied on for reversal is that the court erred in denying the motion made at the conclusion of the people's testimony to discharge defendants, for the reason that the evidence failed to prove that the horse was taken from the possession of Sherwood. The evidence upon this point was, in substance, as follows: Mr. Sherwood, the owner of the horse, testified that he arrived at Magnolia with the horse about 8 o'clock in the evening on the 5th of August, and, not having room in his stable, left her outside, and that she disappeared that night, and he did not see her again for several days. Albert King, a witness for the people, testified that he and the defendants, on or about the 8th of August, took the horse from the pasture of Mr. Kiggee. It will be observed that the statute provides several ways in which a larceny may be committed, and an information that charges in a single count that the defendant did all of the forbidden things, by employing the conjunction 'and' where the statute uses 'or,' is good, and is supported by proof that the defendant committed the offense in any of the ways specified. Bish. Directions & Forms, §§ 19, 21; Pettit v. People, 24 Colo. 517, 52 P. 676. Therefore, if it may be said, as contended by counsel for plaintiffs in error, that the evidence is not sufficient to show that the owner of the horse was deprived of its immediate possession, it is clearly sufficient to show that the larceny was committed in the manner first specified in the statute, to wit, by driving, leading, or riding away the animal.

It is further...