State v. Brace
| Decision Date | 17 July 1930 |
| Docket Number | 5500 |
| Citation | 290 P. 722,49 Idaho 580 |
| Parties | STATE, Respondent, v. E. E. BRACE, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-GRAZING SHEEP ON CATTLE RANGE-COMPLAINT, SUFFICIENCY OF - NEGLIGENCE - CRIMINAL LIABILITY - INSTRUCTIONS CIRCUMSTANTIAL EVIDENCE.
1. Complaint charging grazing of sheep upon cattle range previously occupied by certain cattle raisers and usually and customarily used as cattle range held sufficient (C. S., sec 8333).
2. In prosecution for pasturing sheep on cattle range, instructions defining negligence following statute held not erroneous (C S., secs. 8074, 8087).
3. Refusing instruction on circumstantial evidence in prosecution for grazing sheep on cattle range held not error where state relied on direct evidence.
4. That jury must determine intent of defendant prosecuted for grazing sheep on cattle range, in connection with directions given herders, did not make evidence in connection therewith circumstantial so as to require charge thereon.
5. It was not error to refuse instruction not applicable to any evidence.
6. Refusing instruction covered by one given held not error.
7. Where defendant prosecuted for grazing sheep on cattle range told herders to drive sheep across range and knew time it would take, jury was justified in holding defendant criminally liable (C. S., sec. 8333).
APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Chas. F. Koelsch, Judge.
Appeal from conviction of grazing and pasturing sheep on cattle range. Judgment affirmed.
Judgment affirmed. Petition for rehearing denied.
Wm. M. Morgan, for Appellant.
A criminal complaint, in order to be sufficient, must set forth all the elements necessary to constitute the crime sought to be charged. (State v. Butterfield, 30 Idaho 415, 165 P. 218; State v. Scheminisky, 31 Idaho 504, 174 P. 611; State v. Cole, 31 Idaho 603, 174 P. 131; State v. Bidegain, 33 Idaho 66, 189 P. 242; State v. Whedbee, 152 N.C. 770, 67 S.E. 60, 27 L. R. A., N. S., 363, at 369; 31 C. J. 693, sec. 238, and note 17; 703, sec. 257, 708, sec. 260.)
In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence, and this rule applies to the crime sought to be charged in this case. (C. S., sec. 8087; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; State v. Bidegain, supra; State v. Becker, 35 Idaho 568, 207 P. 429.)
The term "criminal negligence" as used in Idaho (C. S., sec. 8087) means gross negligence. It is such negligence as amounts to a reckless disregard of consequences and of the rights of others. It does not mean merely the failure to exercise ordinary care, or "that degree of care which an ordinarily prudent person would exercise under like circumstances." (45 C. J. 1371, sec. 951; Sullivan v. State, 21 Okla. Crim. 410, 209 P. 181; People v. Rosenheimer, 209 N.Y. 115, Ann. Cas. 1915A, 161, 102 N.E. 530, 46 L. R. A., N. S., 977, at 981; People v. Seiler, 57 Cal App. 195, 207 P. 396; Thomas v. People, 2 Colo. App. 513, 31 P. 349; Brimhall v. State, 31 Ariz. 522, 53 A. L. R. 231, 255 P. 165; People v. Adams, 289 Ill. 339, 124 N.E. 575; People v. Campbell, 237 Mich. 424, 212 N.W. 97; State v. Young, (N. J.) 56 A. 471; People v. Anderson, 310 Ill. 389, 141 N.E. 727; Luther v. State, 177 Ind. 619, 98 N.E. 640; Radley v. State, (Ind.) 150 N.E. 97.)
W. D. Gillis, Attorney General, and Leon M. Fisk, Assistant Attorney General, Earle E. Garrity, Prosecuting Attorney, and Wm. Healy, for Respondent.
The phrase "cattle range, previously occupied by cattle," set out in the complaint, sufficiently avers priority of possession and use.
Instruction with respect to circumstantial evidence need not be given where evidence is not wholly circumstantial. (State v. Peters, 43 Idaho 564, 253 P. 842; State v. Stevens, 48 Idaho 335, 282 P. 93.)
On appeal from a conviction of grazing and pasturing sheep on a cattle range, contrary to C. S., sec. 8333, appellant assigns in substance five grounds for reversal: First, that the criminal complaint filed in the probate court, which initiated the prosecution, does not state a cause of action, because it does not sufficiently allege that the range had been and was at the time of the alleged offense possessed as a cattle range, and that the complaint did not negative abandonment as a cattle range or a partial use of the range by sheep. The portion of the complaint material to a consideration of this point is as follows:
While not controlling or decisive it is at least noteworthy that this portion of the criminal complaint is almost identical with the criminal complaint in State v. Omaechevviaria, 27 Idaho 797, 152 P. 280, wherein a demurrer was interposed alleging with great particularity the grounds urged herein, though the point was merely mentioned in the opinion, not discussed.
The word "previous" in the complaint is to be read in connection with the words "usually" and "customarily." One of the definitions given by Webster's dictionary for "customarily" is "habitual," and the statement in State v. Omaechevviaria, supra, is pertinent in this connection, as follows:
"A cattle range in this state has a well-defined meaning, and so has a sheep range; and this meaning is fully recognized by persons engaged in the two industries."
Appellant cites State v. Butterfield, 30 Idaho 415, 165 P. 218, to the effect that the state must prove the territory to be exclusively a cattle range and so possessed, and such contention is sound; but we are here concerned with pleading, not evidence. In the case cited, the complaint, page 418, was worded as the one herein, and the court said, page 419:
indicating clearly that the language of the complaint alleged that which appellant contends must be proved. The complaint was amply sufficient to apprise the defendant of the offense with which he was charged and is sufficient. (State v. Gee, 48 Idaho 688, 284 P. 845.)
The appellant next complains of instructions numbers 11 and 12 and in refusing to give appellant's requested instruction number 8, it being appellant's contention that criminal negligence in this state must be gross negligence, and that the latter portion of instructions 11 and 12, where the standard is that of ordinary care or that degree of care which an ordinarily prudent person would exercise under like circumstances, was erroneous; and that since the defendant...
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