State v. Basinger

• Decision Date: 24 October 1928
• Docket Number: 5181
• Citation: 271 P. 325,46 Idaho 775
• Parties: STATE, Respondent, v. SAMSON BASINGER, Appellant
• Court: Idaho Supreme Court

271 P. 325

46 Idaho 775

STATE, Respondent, v. SAMSON BASINGER, Appellant

No. 5181

Supreme Court of Idaho

October 24, 1928

INDICTMENT AND INFORMATION-SUFFICIENCY-LARCENY OF LIVESTOCK-BRANDS-EVIDENCE.

1. In prosecution for theft of a steer, parol evidence regarding brand, while not admissible, under C. S., sec. 1927, to prove ownership of brand, was admissible to establish identity of animal stolen.

2. Charging part of information or indictment is sufficient if act or acts constituting offense be set forth in ordinary and concise language and in such manner as to enable person of common understanding to know what is intended.

3. Information charging grand larceny in that defendant did steal, take and drive away one two year old steer, etc., held sufficient after conviction under C. S., sec. 8426, defining larceny, and sections 9084 and 9191, relating to technical errors, even though it failed to allege that defendant "feloniously" stole, etc.

APPEAL from the District Court of the Sixth Judicial District, for Butte County. Hon. Clinton H. Hartson, Judge.

Samson Basinger was convicted of grand larceny, and he appeals. Affirmed.

Affirmed.

Solon B. Clark, for Appellant.

The information, failing to allege the act to have been done feloniously or wilfully or unlawfully, is wholly insufficient upon which to base verdict, judgment or sentence. (People v. Lopez, 90 Cal. 569, 27 P. 427; People v Turner, 122 Cal. 679, 55 P. 685; 14 R. C. L. 177; State v. Rechnitz, 20 Mont. 488, 52 P. 264.)

Parol evidence is not admissible to prove ownership of a brand. (C S., secs. 1920, 1927; State v. Dunn, 13 Idaho 9, 88 P. 235.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

Proof of ownership of a brand is not essential in proving the ownership of stolen cattle. They may be identified in another manner and by parol evidence. (State v. Dunn, 13 Idaho 9, 88 P. 235.)

The omission of the word "feloniously" from an information charging grand larceny is not a fatal defect rendering it insufficient to charge the crime where the information alleges that defendant did "steal, take and drive away" the property of another. (People v Lopez, 90 Cal. 569, 27 P. 427; State v. Minnick, 54 Ore. 86, 102 P. 605; Cason v. State, 16 Ga.App. 820, 86 S.E. 645; State v. Uhler, 32 N.D. 483, 156 N.W. 220; State v. Halpin, 16 S.D. 170, 91 N.W. 605.)

BUDGE, J. Wm. E. Lee, C. J., and Givens and Taylor, JJ., concur.

OPINION

BUDGE, J.

Appellant was accused by information of the crime of grand larceny, in that he did "steal, take and drive away, one two year old steer," etc., to which he entered a plea of not guilty. He was found guilty by a jury, but, before pronouncement of sentence, interposed a motion in arrest of judgment upon the ground that the information failed to state a public offense in that it did not charge him with "feloniously" stealing the animal in question. The motion was overruled and appellant was sentenced to serve a term of imprisonment in the state penitentiary. He appeals from the judgment of conviction.

In addition to assigning as error the overruling of the motion in arrest of judgment and the passing of judgment and sentence, appellant raises in his brief the question of the sufficiency of the evidence to support the verdict, and also contends that the trial court erred in permitting parol evidence to be introduced to prove ownership of a brand found on the hide of the steer. We were given to understand upon the argument that the only point appellant desired to stress is that with reference to the information. Even so, we are satisfied, from a careful review of the record, that the evidence, though conflicting, is not subject to objection on the ground of insufficiency to support the verdict. Both the state's theory and that of appellant's as to the taking of the steer, which fact of itself is not disputed, were clearly presented to the jury, and, it having chosen to believe the evidence offered by the prosecution, sufficient to authorize a verdict of guilty, we are not in a position to disturb the jury's finding.

As to the admission of parol evidence in regard to the brand found on the hide of the steer after it had been butchered by appellant, it may be freely conceded that to admit such evidence strictly for the purpose of proving ownership of a brand is not permissible, under the provisions of C. S., sec. 1927, but such was not the purpose in this case but rather was it to establish the identity of the animal claimed to have been stolen. Proof of the ownership of the brand was not material, and the line of questions asked with reference to the brand, among which is the particular one the overruling of an objection to which appellant contends is error, clearly indicates the intention to prove ownership of the animal. The rule and its application to the facts herein, assuming the offered proof with reference to the recordation of the brand was properly excluded, is succinctly stated in State v. Dunn, 13 Idaho 9, 16, 88 P. 235, as follows:

"Without a compliance with the branding law, a man may still prove ownership of an animal marked with an unrecorded brand, but he may not be heard in court to say that he is the owner of such brand or that he has any property right therein."

It is appellant's principal contention that the information failed to state a public offense for failure to allege that he did "feloniously" steal, take and drive away the animal in question. He relies upon the wording of the statute, C. S., sec. 8426, defining larceny as the "felonious stealing, taking, carrying, leading, or driving away the personal property of another," and takes the position that in the absence of the word "feloniously" there is nothing in the information to show a criminal intent.

It is fundamental in this state that the charging part of an information or indictment will withstand attack if on its face it be sufficient to advise the defendant of the nature of the charge against him, and describes the offense with such particularity as to serve as a...