State v. Bjelkstrom

• Decision Date: 02 August 1905
• Citation: 104 N.W. 481,20 S.D. 1
• Parties: STATE OF SOUTH DAKOTA, Defendant in error, v. CHARLES O. BJELKSTROM, Plaintiff in error.
• Court: South Dakota Supreme Court

20 S.D. 1

104 N.W. 481

STATE OF SOUTH DAKOTA, Defendant in error, v. CHARLES O. BJELKSTROM,

Plaintiff in error.

South Dakota Supreme Court

Error to Circuit Court, Stanley County, SD

Hon. Loring E. Gaffy, Judge

Affirmed

W. L. Shrink, John A. Holmes

Attorneys for plaintiff in error.

Philo Hall, Attorney General, J. C. Sinon, L. L. Stephens

Attorneys for the State.

Opinion filed Aug. 2, 1905

CORSON, P. J.

Upon an information duly filed, the plaintiff in error was convicted and sentenced for the crime of grand larceny, and the case is before us on a writ of error to the circuit court of Stanley county. The plaintiff in error, whom we shall in the future designate as the accused, has assigned numerous errors alleged to have been committed by the court in the admission and rejection of evidence, refusal of the court to direct a verdict in his favor, and m the court’s instructions to the jury.

The crime charged in the information is the larceny of a certain colt alleged to be the property of one W. L. Montgomery, and upon the trial it was shown that the colt claimed to have been stolen was taken from the possession of Montgomery’s agent, one Livingston. who seems to have had charge of a number of horses and colts belonging to Montgomery, kept on a ranch in Stanley county; and it appears from the evidence of Livingston himself that Montgomery was the owner of the property, and resided in Chamberlain, in Brule county. Montgomery was not introduced as a witness on the trial, and the proof of the alleged taking and ownership was proven by said Livingston and by the admissions of the accused. Upon the conclusion of the evidence on the part of the state, counsel for accused moved the court to direct a verdict in his favor on the ground that the non-consent of the owner to the taking of the property had not been proven and this motion was renewed at the close of the defendant’s evidence, and at the close of the evidence in rebuttal, and denied.

It is strenuously contended by the accused that in the absence of such proof by Montgomery, the owner of the property, that he had not consented to the taking, he was entitled to an acquittal. This contention is clearly untenable. The property was shown to have been at the time of the taking in the possession of the agent, Livingston, and that it had been in his possession for several months prior thereto as the agent of Montgomery, and that the property was taken from his possession without his knowledge or consent. And one Orville La Plant, a witness on the part of the state, testified that he heard a conversation in regard to the colt between the accused and Livingston, in which the accused said, “I stole this yearling to get even with you.” There was other testimony of the same character, which was, in our opinion, amply sufficient to warrant the jury in finding that the property was taken by the accused without the consent of its owner, Montgomery. The non-consent of the owner may be proved by circumstantial evidence or by admissions or confession of the accused. Van Syoc v. State, 96 N.W. 267; Bubster v. State, 33 Neb. 663, 50 N.W. 953; Perry v. State, 44 Neb. 414, 63 N.W. 26; Rema v. State, 52 Neb. 375, 73 N.W. 474; People v. Jacks, 76 Mich. 218, 42 N.W. 1135; Wilson v. State, 45 Tex. 76. In Van Syoc v. State, supra, the Supreme Court of Nebraska says:

“An instruction was given the jury which was excepted to on the ground that it permitted the finding of nonconsent on the part of the owner to the taking of the property alleged to have been stolen from circumstances shown in evidence, and not by any direct proof. The instruction was proper. The owner, it was shown, was at the time lying on his deathbed, and wholly unconscious of what was passing around him. As was said in Weigrefe v. State, 92 N.W. 161; All the circumstances surrounding the alleged larceny were inconsistent with a taking with the consent of the owners, and want of consent may be inferred from circumstances shown in evidence as well as by direct testimony that none was given.’ See, also, Rema v. State, supra.”

Of course the jury must be satisfied beyond a reasonable doubt that the property was taken by the accused without the consent of its owner; and where, as in the case at bar, the property was taken from the possession of the agent, proof that it was taken without his consent, in connection with other evidence that satisfied the jury that the property was taken without the consent of the owner, is sufficient, without calling the owner as a witness to prove the fact of his nonconsent. We are of the opinion, therefore, that the court committed no error in refusing to direct a verdict in favor of the accused.

It is further contended by the accused that the court erred in its instructions to the jury, one of which was as follows:

“This information charges that the defendant, Bjelkstrom, in this county and state, on or about the 15th day of June last, did, by fraud or stealth, take, steal, and carry away one certain colt then and there of the value of $20, with intent to deprive the owner thereof; the same colt being then and there the property of one Montgomery, and in charge of the complaining witness, John Livingston.”

The court undoubtedly committed a slight error in stating that it was alleged in the information that the property claimed to have been stolen was “in charge of the complaining witness, John Livingston,” as the last-quoted words were not in the information. The court, in making this statement, was evidently stating the substance of the information and the claim made on the part of the state, and we fail to see...