State v. Anderton
| Decision Date | 16 January 1933 |
| Docket Number | 5334 |
| Citation | 81 Utah 320,17 P.2d 917 |
| Court | Utah Supreme Court |
| Parties | STATE v. ANDERTON |
Appeal from District Court, Sixth District, Sevier County; N. J Bates, Judge.
John B Anderton was convicted of Grand larceny, and he appeals.
AFFIRMED.
J Vernon Erickson, of Richfield, for appellant.
Joseph Chez, Atty. Gen., and L. A. Miner, Sp. Deputy Atty. Gen., for the State.
Defendant was convicted of the crime of grand larceny, the stealing of five sheep the property of Binning Goold, and appeals. The errors assigned are that the verdict is erroneous, that the trial court erred in refusing to direct a verdict of not guilty and in refusing to grant defendant's motion for a new trial, all on the ground of insufficiency of the evidence, and error also is assigned to the admission of testimony of the changing of brands on sheep belonging to other parties.
The evidence discloses that during the spring and summer of 1931 John Sallalis was running in the vicinity of Brimhall Springs, Sevier county, Utah, what is referred to as a Co-op herd of sheep; that is, the sheep belonging to fifteen or twenty different owners. In that herd the defendant had placed 360 sheep and 230 lambs. In the same herd Binning Goold had 34 Merino sheep which were marked with two slits in the right ear, an aluminum tag in the left ear, and were branded S. G. with a bar over it. Early in October of 1931, Sallalis missed a number of sheep from the herd. On about October 24th the Co-op herd was separated and the remaining sheep returned to their owners. Defendant received his lambs in September, and about the 24th of October received 200 of his sheep, which he thereupon turned over to the Monroe State Bank in partial satisfaction of a mortgage. At the breaking up of the herd Goold received only 15 of his sheep. On or about the 17th of October, 1931, at dusk, that is, between sundown and dark of that day, Niel Wilson and Truman Wilson were driving a herd of sheep belonging to their brother John B. Wilson just south of the town of Elsinore. This herd was being driven to the desert for wintering. The defendant had a small bunch of sheep numbering 147 which at that time and place were ahead of the Wilson herd and which defendant "pushed" or drove into and commingled with the Wilson herd. Niel and Truman Wilson had some conversation with defendant at that time with reference to whether he had arranged to put his sheep into the herd. Niel Wilson testified that Truman asked the defendant if he had seen John and that defendant answered, "Yes, John had given him no answer on the sheep." There was no corral in the vicinity, so the sheep were not separated, but the entire commingled herd was driven toward the desert. On or about the 26th of October John Sallalis, and Sheriff Fairbanks of Sevier county, went to Antelope Point, where the Wilson herd was then located. There they discovered a number of sheep that had been freshly marked by slitting and cutting of the ears and branded over the old brands with the defendant Anderton's brand. The sheriff testified that the ears of the sheep were pretty badly cut and with a fresh slit in the left ear. The marking and mutilation of the ears had, in the opinion of the sheriff, been done about ten days previously. The ears were sore and the blood was still on the wool around the ears. One hundred and forty sheep were cut out of the Wilson herd and taken back to the sheriff's corral at Richfield. These sheep were branded with Anderton's brand, many of them branded over other brands, and many of the sheep had ears slit and mutilated. Niel and Truman Wilson testified it was too dark to observe the condition of the sheep which Anderton pushed into their herd on the night that he did it, but on the next morning they looked at the sheep and observed the fresh branding and marking, which they described. Niel Wilson testified that the sheep cut out and taken back by the sheriff were the sheep "pushed" into the herd by the defendant. Among the sheep brought back and placed in the sheriff's corral were 10 identified by Binning Goold as belonging to him. The sheriff testified that there were some sheep there of a Mr. Henrie and some of a Mr. Parker and others, all of which had been freshly branded and marked. Various persons came and claimed the sheep, and upon identification they were turned over to Sallalis and the owners. There was testimony to the effect that the defendant said he had marked and branded the 147 sheep, which he claimed to own, to distinguish them from his sheep which were mortgaged to the bank and which had been in the Sallalis herd. The marks and brands, however, on both bunches of sheep were the same. The defendant testified in his own behalf that the 147 sheep were his own; that in the spring the bunch numbered 175 but had simmered down to 147 by winter, and that he had kept them at home during the summer, fed them in the...
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