Starke v. State

• Decision Date: 23 June 1908
• Citation: 17 Wyo. 55,96 P. 148
• Parties: STARKE v. STATE
• Court: Wyoming Supreme Court

96 P. 148

17 Wyo. 55

STARKE v. STATE

Supreme Court of Wyoming

June 23, 1908

ERROR to the District Court, Converse County; HON. RODERICK N MATSON, Judge.

J. A Starke was prosecuted for grand larceny upon an information charging the stealing of 400 sheep, the property of the Mountain Home Company, a corporation. He was convicted and thereupon prosecuted error. The material facts are stated in the opinion.

Affirmed.

Fred D Hammond and Claude S. Wilson, for plaintiff in error.

The three jurors who were members of an association or associations of stock or wool growers were incompetent and the defendant's challenge of such jurors for cause should have been sustained, since it appeared that one purpose of each of such associations was the detection and prosecution of parties for stealing live stock. (Fleming v State, 11 Ind. 234; Pierson v. State, id. 341; State v. Moore, 48 La. An. 380; Com. v. Eagan, 70 Mass. 18; Com. v. Moore, 143 Mass. 136; Jackson v. Sandman, 64 Hun, 634; State v. Fullerton, 90 Mo.App. 411; Martin v. Ins. Co., (Mich.) 102 N.W. 656; McLaughlin v. Light Co., 100 Ky. 173.) Where defendant's challenge of a juror for cause is erroneously overruled, the error is not cured by the fact that such juror was afterwards challenged peremptorily by the defendant, although the jury was impaneled without exhausting the peremptory challenges allowed to the defendant by law. (Baxter v. People, 8 Ind. 368; Meaux v. Town, 8 Ill.App. 173; Fletcher v. Crist, 139 Ind. 121; People v. McGonegal, 136 N.Y. 621; Dowdy v. Com., 9 Grat. 727; People v. Weil, 40 Cal. 268; Hubbard v. Rutledge, 58 Miss. 7; People v. Casey, 96 N.Y. 115; Brown v. State, 70 Ind. 576; State v. McCoy, 109 La. 682; State v. Stentz, 30 Wash. 134; Birdsong v. State, 47 Ala. 68; Iverson v. State, 52 Ala. 170; Lithgow v. Com., 2 Va. Cas. 297; Republican v. Richards, 1 Yeates, 480; People v. Bodine, 1 Den. 281; Boyle v. People, 4 Colo. 176.) The decisions have so far respected the principle that a party interested in any way in the litigation should not sit as a juror, that a taxpayer has been held incompetent as a juror in an action against a city for damages. (Goshen v. England, 119 Ind. 368; Wood v. Stoddard, 2 Johns. 194; State v. Williams, 30 Me. 484; Gibson v. Wyandott, 20 Kan. 156; Columbus v. Goetchins, 7 Ga. 139; Bailey v. Trumbull, 31 Conn. 581; Cramer v. Burlington, 42 Ia. 315; Diveny v. Elmira, 51 N.Y. 506; Hearn v. Greenburgh, 51 Ind. 119; Garrison v. Portland, 2 Ore. 123; Watson v. Tripp, 11 R. I. 198; Fullweiller v. St. Louis, 61 Mo. 479; Fine v. Pub. Sch., 30 Mo. 166; Kendall v. Albia, 73 Ia. 243.)

It is the duty of the court in felony cases, whether requested to do so or not, to fully instruct on all the law of the case. (State v. Bransetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; Cole v. State, 40 Tex. 147; Sanders v. State, 41 Tex. 306; Miers v. State, (Tex.) 29 S.W. 1074; Charlton v. Sate, 43 Neb. 373; Pjarou v. State, 47 Neb. 294; Fulcher v. State, 41 Tex. 233.) The failure of the court to define the crime of larceny with which the defendant was charged was error. (Sledge v. State, 99 Ga. 648; Railroad v. Harris, 76 Ga. 510; State v. Heinze, 66 Mo.App. 135; State v. Kolb, 48 id. 269; Hardy v. State, 7 Mo. 607; Shaw v. State, 40 Tex. 60; Sims v. State, 9 Tex.App. 586; Benendes v. State, 14 id. 478; Jackson v. State, 15 id. 84; State v. Taylor, 118 Mo. 153; Hix v. People, 157 Ill. 382; State v. McCaskey, 104 Mo. 644; Cady v. State, 4 Tex.App. 238; Lindley v. State, 8 id. 445; Parker v. State, 136 Ind. 284; State v. Bardetta, 73 Ind. 185; Whately v. State, (Ala.) 39 So. 1014; State v. Desmond, (Ia.) 80 N.W. 214; State v. Fulford, 32 S.E. 377.) It is not necessary to copy the statute where the charge embodies all the elements of the crime. (Adkins v. State, 56 S.W. 63.) The court not only failed to define larceny but gave an instruction which stated a portion only of the elements of the crime.

It was the duty of the prosecution to prove affirmatively the absence of consent on the part of the owner of the stolen property to the taking, and where one person is the owner and another has the control and management of the property, the want of the consent of each must be proved. (Williamson v. State, 13 Tex.App. 514; Boling v. State, id. 338; Schultz v. State, 7 id. 363.) Property is taken with the consent of the owner so that there is no larceny, where one employed by cattle owners to catch thieves, with their consent and authority "operates with suspected thieves" in planning, and in taking the cattle for the purpose of having them arrested for stealing them. (State v. Hull, (Ore.) 54 P. 159; Love v. People, 160 Ill. 508; Connor v. People, 18 Colo. 73.)

While appellate courts will hesitate before disturbing a verdict, yet where it is perfectly evident that to sustain the ends of justice it should be reversed, a reversal is not precluded. (State v. Newton, (Wash.) 81 P. 1002.) A verdict is contrary to law when the evidence, if true, will not justify a verdict as a matter of law. (Richardson v. Van Vorhis, 3 N.Y.S. 599.) A verdict in disobedience of instructions is a verdict against law. (Emerson v. Santa Clara County, 40 Cal. 543; Declez v. Save, 71 Cal. 552; Bunten v. Ins. Co., 4 Bosw. 254; Valerious v. Richard, 57 Minn. 443.) On motion for new trial it is the duty of the trial court to weigh the evidence, although conflicting, and to set the verdict aside if manifestly against the weight of the evidence. (People v. Knutte, 111 Cal. 453; People v. Baker, 39 Cal. 686; 105 Cal. 409; 20 Ill. 93; 5 Mass. 353; 8 Nev. 61; 11 N.Y.S. 452; 40 W.Va. 484, 593; 14 Ency. Pl. & Pr. 781.) If the sheep alleged to have been stolen were taken with the knowledge and consent of Hartman, who had charge of them and in whose possession they were, as alleged by the defendant, then there was no larceny. (Hall v. Com., 78 Va. 678; Johnson v. State, 39 Tex. 393; Bailey v. State, 18 Tex.App. 426; Powell v. State, 11 id. 401; Morrison v. State, 17 id. 434; Frazier v. State, 18 id. 434; 12 Ency. L., 1st Ed., 16.) Whether Hartman consented to the taking as claimed by the defendant under an agreement between them, or was laying a trap in which to catch defendant, there would be in either case want of consent, and the prosecution must fail. (Allen v. State, 40 Ala. 334; Com. v. People, 18 Colo. 373; People v. McCord, 76 Mich. 200; Saunders v. People, 38 Mich. 218; Spieden v. State, 3 Tex.App. 163.) It seems to be clear upon the evidence that the property alleged to have been stolen was taken with the knowledge and consent of Hartman, and it matters not what his motive was. It is sufficient to cause a reversal that Hartman knew the property was to be taken, and that it was taken with his consent.

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

The cases cited by counsel for plaintiff in error do not sustain the contention that the taking in this case was in law by consent of the owner. If the criminal design originates with the accused, and the intended victim does not actually urge him on to the commission of the crime, the mere fact that he facilitates the execution of the scheme and that his agents co-operate in its execution will be no defense for the accused. The evidence in this case clearly brings it within this rule. (People v. Henselman, 76 Cal. 460; 1 Bish. Cr. L. 262; Com. v. Nott, 135 Mass. 269; State v. Jensen, 22 Kan. 498; Pigg. v. State, 43 Tex. 108; Varner v. State, 72 Ga. 745.) Where the goods are in the mere custody of a servant or other person, his consent to a taking will not prevent it from being larceny. (25 Cyc. 38-44.) The fact that the owner consents to and does not prevent the taking is no defense, nor that the owner so places his property or takes such other steps as to facilitate the taking. (18 Ency. L. 471-472.) There is some conflict in the evidence, but the jury having passed upon it the verdict will not be disturbed, since there is evidence tending to support it. (Phillips v. Ter., 1 Wyo. 82; O'Brien v. Foglesong, 3 Wyo. 57; Cornish v. Ter., 3 Wyo. 95; Rainsford v. Massengale, 5 Wyo. 1; Jackson v. Mull, 6 Wyo. 55.)

A juror is not incompetent on the ground of pecuniary interest because he may have contributed to the fund for the prosecution of that class of offenses or for the prosecution of a particular offense. (24 Cyc. 270.) Membership in an organization, the object of which is to prosecute criminals and persons charged with a particular kind of crime, but which is under no legal obligation to do so, does not, as a matter of law, necessarily disqualify. (Abbott's Cr. Tr. Br., 238 and cases cited.) There is a clear line of distinction between cases where the juror, as an officer or member of such an association, has taken an active part in the prosecution of the particular case on trial, or who, by reason of his connection with an organization for the suppression of a particular class of offenses, shows a personal bias or feeling, and that other class of cases where a juror is merely a contributing member of the organization, but has taken no active part in the prosecution of the case on trial, or similar cases, either as an officer of such organization or as a private individual. (Guy v. State, 96 Mo. 692; Musick v. People, 40 Ill. 268; Boyle v. People, 4 Colo. 176; Com. v. O'Neil, 6 Gray, 346; State v. Wilson, 8 Ia. 410; U. S. v. Noelke, 1 F. 426; U. S. v. Barger, 7 F. 193; Koch v. State, 32 O. St. 356; Com. v. Burroughs, 145 Mass. 242; State v. Flick, 48 Kan. 146; Heacock v. State, 13 Tex.App. 129; State v. Hoxsie, 15 R. I. 1.)

The decided weight of authority supports the rule that a failure to instruct the jury in whole or in part is not error in the absence of a request in the first instance, or a request for more specific instructions...