Smith v. State

• Decision Date: 22 May 1909
• Citation: 101 P. 847,17 Wyo. 481
• Parties: SMITH v. STATE
• Court: Wyoming Supreme Court

101 P. 847

17 Wyo. 481

SMITH v. STATE

Supreme Court of Wyoming

May 22, 1909

ERROR to the District Court, Big Horn County, HON. CARROLL H PARMELEE, Judge.

Upon an information charging Ella Smith with misbranding two horses with the intent then and thereby to steal the same she was found guilty and sentenced to a term in the State penitentiary, and thereupon prosecuted error. The material facts are stated in the opinion.

Affirmed.

H. S Ridgely and R. B. West, for the plaintiff in error.

All the evidence in the case should be considered in determining whether the verdict is contrary to law and sustained by the evidence. (Phillips v. Terr., 1 Wyo. 82.) Upon the material evidence in the cause the crime charged is not established, and the cause should be reversed and remanded. (Bryant v. State, 7 Wyo. 312.) The plea of not guilty put in issue every material allegation of the information. (State v. Pressler (Wyo.), 92 P. 806.) The branding of the colts in question by the defendant is shown to have occurred through an honest mistake, while one of the necessary elements necessary to constitute the crime charged is the intent to steal. It was incumbent upon the State to establish the intent charged beyond all reasonable doubt. The intent was the only question in issue, since the branding was admitted.

It was error to admit testimony in reference to the branding of other horses than the ones mentioned in the information. That evidence tended to show another substantive and independent crime and did not even tend to connect defendant with its commission, nor to connect her with the crime charged in the information. The general rule is that evidence respecting other crimes than the one charged is inadmissible. (People v. Gray, 5 P. 240; People v. Sharp, 107 N.Y. 427.) The only exceptions to the rule are limited to cases where proof of substantive offenses are admissible as matters res gestae or to show intent, scienter, or motive or to identify the defendant. (Underhill Cr. Ev. secs. 88-92; Wharton Cr. Ev. (9th Ed.) secs. 31-44; People v. Gray, supra; Edelhoff v. State, 5 Wyo. 19; Horn v State, 12 Wyo. 80; Shriedley v. State, 23 O. St. 130.) Again the rule is that before evidence of an extraneous crime can be admitted the defendant must be connected with its commission. (Wharton Cr. Ev. (9th Ed.) sec. 48; Com. v. Edgerly, 10 Allen, 184; People v. Thoms, 3 Park. Cr. 256; Underhill Cr. Ev., page 110, sec. 87.)

It was prejudicial error to refuse the requested instruction defining reasonable doubt, and it was error also for the court to refuse to give any instruction defining that term. (Wacaser v. People, 134 Ill. 438; State v. McKinzie, 102 Mo. 620; Toglia v. State, 229 Ill. 286; People v. Paulsell (Cal.), 46 P. 734; Com. v. Webster, 52 Am. Dec. 711; State v. Heed, 57 Mo. 252.) Prejudicial error occurred through permitting the prosecuting attorney over the objections of the defendant to argue to the jury that other horses than the ones charged in the information had been branded with the intent to prevent their identification.

W. E. Mullen, Attorney General, for the State.

The testimony of the defendant is not at all conclusive that her act in branding the colts was a mistake, for her statements with reference to that matter are not consistent. While she stated that she did not intend to steal the colts she made an admission that she did not know at the time they were branded by her to whom they belonged. Again, her subsequent offer to purchase the colts from Baldwin, the alleged owner, clearly indicates that she knew the colts did not belong to her. A criminal intent need not be established by direct evidence, but the jury may draw the inference from any facts in evidence which to their minds fairly prove its existence. (Bryant v. State, 7 Wyo. 311.) A number of circumstances shown by the evidence indicates the defendant's criminal intent. The placing of brands on range animals in a range country, especially upon a young unbranded animal, is an assertion of ownership. If it belongs to some other person it is a taking under the statute. (Terr. v. Chevez (N. M.), 30 P. 93; State v. Cardelli, 19 Nev. 319; Chestnut v. People, 21 Colo. 512.)

The instruction which followed the language of the statute in defining the crime was proper and was not objectionable in view of the evidence to the effect that the brands had been changed upon the mothers of the animals mentioned in the information. That evidence was admissible as bearing upon the question of ownership of the mares claimed by the prosecuting witness to be the mothers of the colts. It is not error to refuse an instruction which is not correct in its entirety. (11 Ency. Pl. & Pr. 234.) The requested instruction defining reasonable doubt defined that term incorrectly and the instruction was therefore properly refused. (Densmore v. State, 67 Ind. 306; Palmerston v. Terr., 3 Wyo. 333.) A mere request that the court give an instruction defining reasonable doubt is not sufficient to render the failure to define the term in the instructions prejudicial error, but it is the duty of the party desiring such instruction as well as any other to present an instruction containing the law upon the point correctly stated. (Curran v. State, 12 Wyo. 578; 11 Ency. Pl. & Pr. 238; Brantley v. State, 9 Wyo. 102.) It is held by a number of responsible authorities that it is not necessary for a trial court to define the term "reasonable doubt." (State v. Smith, 65 Conn. 283; State v. Jones, 37 Conn. 361; Miles v. U.S. 103 U.S. 304; Com. v. Costley, 118 Mass. 1; Com. v. Tuttle, 12 Cush. 502; Com. v. Cobb, 14 Gray 57; People v. Stubenval, 62 Mich. 334; State v. David, 28 P. 1092. See also State v. DeLea, 93 P. 814.) The argument of the prosecuting attorney with reference to the altering of the brands upon the mothers of the colts does not seem to have violated the rules of argument but amounted merely to a statement of the inferences drawn by the prosecutor from the circumstances shown by the evidence.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error, Ella Smith, was charged by an information filed by the county and prosecuting attorney of Big Horn County in the district court of that county, with the crime of unlawfully and feloniously branding two horses, each of the value of $ 35.00, the property of J. M. Baldwin, with intent to steal said animals. She entered a plea of not guilty, was tried and convicted, and she brings the case here on error.

The horses that the prosecution claimed to have been so branded were two suckling colts, one a bay and the other a sorrel. The defendant testified in her own behalf and admitted that she branded the colts, but claimed that they were her property, or if they were not, that she branded them honestly believing them to be her property at the time. To prove the ownership of the colts the prosecuting witness, Baldwin testified that he was the owner of two mares, one a bay and the other a sorrel, each of which had a colt in the spring of 1907, each colt being of the same color as its mother; that the mares and colts were turned out on the range when the colts were one or two months old, the mares being branded with his brand, the colts being unbranded at that time; that he saw them together about October 9, of that year and that at that time the colts were still unbranded; that he next saw the mares about October 25, 1907, but the colts were not with them. He was then permitted by the court to testify, over the objection of the defendant, that at that time the brands on each of the mares had been changed and other brands placed upon them, which he described. Another witness for the state was likewise permitted to testify as to what brands he observed upon the mares about October 12, 1907, and as to the appearance of the brands. Counsel for plaintiff in error contend that it was error to admit this testimony and say in their brief "that evidence was permitted to go to the jury of another substantive and independent crime, other than the one defendant was charged with, and being prosecuted for the commission of. Such evidence did not even attempt to charge defendant with the commission of such extraneous crime and in no manner connected her with it. Nor did it in any sense tend to fasten such crime on her or connect it with the crime she was charged with. As to who committed the crime of branding or altering or defacing the brands of the mothers of the colts in question the evidence does not speak;" and that, therefore, it was error to admit it. We think counsel misapprehend the purpose for which the evidence was admitted and for which it was competent. It devolved upon the State to prove that the colts were the property of Baldwin; and as tending to do so he had testified that these mares were the mothers of the colts and that after the mares and colts had been separated for some time each mare recognized her colt. He testified that the mares belonged to him although the brands upon them in the fall soon after the colts had been branded by defendant were different from his brand, which he stated was the only brand upon them when turned out in the spring. That being the situation it was proper to show what changes had been made in the brand, and the appearance of the brands as indicating whether they had been recently changed, etc., in order that the jury might be able to say whether these mares were the same ones he had turned out in the spring and were in fact his property. The evidence being competent for that purpose was properly...