State v. Becker

• Court: United States State Supreme Court of Idaho
• Writing for the Court: RICE, C. J.
• Citation: 207 P. 429,35 Idaho 568
• Parties: STATE, Respondent, v. JERRY BECKER, Jr., and HARRISON BECKER, Appellants
• Decision Date: 02 June 1922

207 P. 429

35 Idaho 568

STATE, Respondent,
v.
JERRY BECKER, Jr., and HARRISON BECKER, Appellants

Supreme Court of Idaho

June 2, 1922

CRIMINAL LAW-HERDING SHEEP ON CATTLE RANGE-EVIDENCE.

1. Mere ownership of an undivided interest in a band of sheep does not tend to prove a wilful intent to herd and graze them upon a prior cattle range in violation of the provisions of C. S., sec. 8333.

2. An essential element of the crime of herding sheep on a prior cattle range, in violation of C. S., sec. 8333, is the intent to commit the act as well as the commission thereof.

3. On examination of the evidence in the case at bar, it is held that there is no evidence of wilful intent to herd sheep upon a prior cattle range.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. F. J. Cowen, Judge.

Defendants convicted of grazing and herding sheep on cattle range. Judgment reversed and new trial ordered.

Judgment reversed as to both appellants and a new trial ordered.

L. E. Glennon, for Appellants.

The evidence must establish beyond a reasonable doubt that the defendants acted wilfully, and even though the evidence might conclusively establish all of the other elements of the offense, if there is no showing of criminal intent, then the evidence is insufficient to support the verdict and the judgment. (C. S., sec. 6314; State v. Omaechevviaria, 27 Idaho 797, 152 P. 180.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

It is necessary to save an exception to an order of the court overruling a demurrer to the information, and overruling a motion to quash the information. (C. S., sec. 9008; State v. Crawford, 32 Idaho 165, 179 P. 511.)

It is necessary on appeal to particularize in the specification of error wherein the evidence is insufficient to support the judgment or the verdict. (C. S., sec. 9013; Rule 42, Rules Supreme Court; State v. Maguire, 31 Idaho 24, 169 P. 175; Hole v. Van Duzer, 11 Idaho 79, 81 P. 109; Later v. Haywood, 14 Idaho 45, 93 P. 374; Humphrey v. Whitney, 17 Idaho 14, 103 P. 389; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

[35 Idaho 569] RICE, C. J.

Appellants were convicted of wilfully and unlawfully grazing and herding sheep upon a prior cattle range in violation of the provisions of C. S., sec. 8333.

The action of the trial court in overruling their demurrer and motion to quash cannot be reviewed because of their failure to save exceptions thereto. (State v. Crawford, 32 Idaho 165, 179 P. 511; State v. Maguire, 31 Idaho 24, 169 P. 175.)

The remaining specifications of error are that the verdict and judgment are contrary to law, in that the evidence is insufficient to sustain either the verdict or the judgment.

In State v. Maguire, supra, it was pointed out that the general...