State v. Arnold

• Decision Date: 04 April 1929
• Docket Number: No. 6417.,6417.
• Citation: State v. Arnold, 84 Mont. 348 (Mont. 1929)
• Parties: STATE v. ARNOLD.
• Court: Montana Supreme Court

84 Mont. 348

STATE

v.ARNOLD.

No. 6417.

Supreme Court of Montana.

March 18, 1929.

Rehearing Denied April 4, 1929.

Appeal from District Court, Rosebud County; G. J. Jeffries, Judge.

Ben Arnold was convicted of grand larceny, and he appeals.Affirmed.

E. E. Fenton, of Forsyth, and Donald Campbell, of Great Falls, for appellant.

L. A. Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., F. F. Haynes, of Forsyth, and Gunn, Rasch, Hall & Gunn, of Helena, for the State.

W. L. FORD, District Judge(sitting in place of ANGSTMAN, J., disqualified).

The defendant, having been convicted of the crime of grand larceny, has appealed from the judgment of conviction and an order denying him a new trial.The defendant was charged jointly with one Vince Quinlan and one Andy Smart, and was granted a separate trial.The evidence upon the part of the state shows:

That in the month of July, 1927, Mary Johnson was the owner of between 75 and 80 head of cattle branded U Lazy D on the right shoulder, among which cattle were more than 40 head of yearling steers and heifers, which cattle during said month of July were on the public range about 2 miles from the Johnson ranch, which ranch is located about 19 miles north of Forsyth.That on the 17th day of July, 1927, William Johnson, the husband of Mary Johnson, counted these cattle and found them all there.That on the 24th day of July, 1927, he again counted them, and found that 31 head of the U Lazy D cattle and one branded JN Bar, belonging to his son, were missing, and that the missing cattle were “long yearlings.”That one day, the latter part of July, Tom Gabel, Arnold, Smart, and Quinlan rode horseback from the Arnold ranch into Forsyth, where all but Gabel turned off toward the river bridge, and Gabel continued into town, from which place he returned to the ranch and again went in to Forsyth in his car after supper.As he was returning to the ranch about midnight on that day, and as he entered the lane leading from the Yellowstone Trail to the Arnold ranch, he discovered Arnold, Smart, and Quinlan driving a bunch of cattle.Arnold at that time rode back to see who it was, and, upon ascertaining this fact, said, “All right,” and returned to the cattle.Gabel rode up to the bunk house while Arnold, Quinlan, and Smart put the cattle in the corral, and then returned to the bunk house.The next morning around 4 o'clock they all got up, and Arnold told Gabel to take the saddle horses, and Arnold, Smart, and Quinlan took the cattle from the corrals, and Gabel kept in the lead of the cattle with the horses.They then started for the Sheep Creek camp or pasture, which is about 15 miles south of the Arnold home ranch, having 33 head of cattle with them.

During this trip Gabel would occasionally drop back and ride with the three defendants driving the cattle.On one of these occasions he asked Smart what brand was on the cattle, and Smart laughed, and Quinlan said, “Can't you read?” and he saw that the brand was U D on the right shoulder.They arrived at the Sheep Creek camp pasture at about 9:30 in the morning.Upon arriving there the cattle were put in a little pasture, the horses being put in the corral, and the four then had something to eat.

After eating, Arnold instructed Gabel to ride the big pasture and gather saddle horses, which he did, returning to camp at about 4 in the afternoon.As he was leaving the camp in the morning, Smart and Quinlan were driving the cattle from the little pasture toward the corral, and Arnold was riding toward them.Upon returning, he observed that the cattle had been in the corral and there were a lot of tracks therein, and also a fire still smoking a few feet from the corral.Neither the tracks in the corral nor the fire were present when he left that morning.The cattle were back in the camp pasture, and branding irons and ropes were lying near the fire.Arnold and Smart drove the cattle through a gate, and Gabel saw that the Double O Bar (Arnold's) brand had been put on the left ribs of all except two, and that the right shoulder of the animals, where the U D had been, was cut and bleeding.Arnold and Smart at that time had some discussion as to where to turn the cattle, and Arnold decided to turn them loose in the big pasture.Gabel, Arnold, and Smart then returned to the camp; Arnold remarking, “We didn't make a bad haul the other night.”During the rest of July and August Gabel treated the mutilated U D cattle and fresh Double O Bar brands, and assisted in mutilating the earmarks on those animals which had not been previously mutilated, and assisted in butchering some of them at the Arnold slaughterhouse, near his home ranch; Arnold always being present and assisting in the work.

Seventeen head of the U D cattle were found between November 1, 1927, and the last of that month, in and around the Arnold big pasture, three of them in the Thomas section within the Arnold big pasture owned by the defendant Arnold, with the brand worked over and Arnold's Double O Bar brand on the left ribs.On November 10, and after the arrest of Arnold, Sheriff Patterson secured a search warrant, and in pursuance thereof searched the Arnold premises, and there found three hides that bore mutilated brands on the right shoulder, which had been apparently cut out, and the defendant's brand on the left ribs.The hides were found lying near the chute leading to the slaughterhouse and in the open field.Evidence was introduced showing the larceny of other animals than those mentioned in the information, about the same time as the larceny of the cattle of which defendant was accused; witness Gabel testifying that he assisted in the mutilation of some cattle branded K. C., and that Arnold asked him if he wanted one of them, and he said “it was all right with him,” and Arnold placed Gabel's brand on the animal; the brands on the animals, other than the U D cattle, were mutilated in the same manner as the U D brand.

Counsel for the defendant assigns 56 specifications of error, but in his argument and brief groups them under 11 heads, and we will follow his arrangement in disposing of the alleged errors.

1.The defendant, prior to his trial, moved the court to suppress the three hides as testimony, upon the grounds that the alleged search warrant under which the hides were found and secured was invalid, for the reason that the affidavit upon which it was issued did not disclose probable cause for its issuance, and also that the premises upon which said hides were found were not describedin the warrant; he also objected to the admission of the hides in evidence upon the same grounds.As the evidence, at the hearing to suppress such testimony, disclosed that the hides were found in the open field of the defendant, the sheriff did not need a search warrant to search such field; for the protection afforded by the constitutional guaranty extends only to the subject-matter of the provision.Section 7, art. 3, of our Constitution, provides, “The people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures;” and an open field is not embraced within any one of the above terms.State v. Ladue, 73 Mont. 535, 237 P. 495;Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898;Schnorenberg v. United States (C. C. A.)23 F.(2d) 38;Koth v. United States (C. C. A.)16 F.(2d) 59;State v. Lee, 120 Or. 643, 253 P. 533;Gilstrap v. State(Okl. Cr. App.)263 P. 155.The court, therefore, did not commit error in refusing to suppress the testimony and admitting the hides in evidence.

2.The defendant moved for a change of venue, and after a hearing, at which affidavits were filed and oral testimony taken, the court denied the motion.Counsel for defendant contend that the showing made by them entitled the defendant to a change of venue, and that the counter affidavits and oral testimony on the part of the state consisted entirely of the opinions of the witnesses.It is true that a very large portion of the testimony on the part of the state consists of such opinions, and the same may be said of the testimony on behalf of the defendant; but we think that as a whole the showing made by the state sufficiently controverted the facts brought out in the defendant's case, and that the court did not abuse its discretion in denying the change of venue.State v. Davis, 60 Mont. 426, 199 P. 421.

3.The state produced a witness (Cauble) who testified that he saw the defendant and one Carolan in the big pasture one day in November, 1927, and positively identified the defendant; on his cross-examination he testified that he made a statement in the county attorney's office that he could possibly have been mistaken in Carolan and Andy Smart, but that he did not think he was mistaken; on redirect he was asked if he did not make a statement in the county attorney's office, in the presence of others, “that he could not be sure of the identification of these men,” and he answered that he did not.Such evidence, on redirect, was at first objected to by counsel for the defendant, but the record shows they withdrew such objection.The state afterwards placed two witnesses on the stand, who testified, over objection by counsel for defendant, that Cauble made such statements.The defendant asserts that the effect of such testimony was the impeachment by the state, without any foundation, of its own witness.

It is manifest that, after the...