State v. Brinkley

• Decision Date: 15 November 1909
• Parties: STATE v. BRINKLEY. [d]
• Court: Oregon Supreme Court

104 P. 893

55 Or. 134

STATE v. BRINKLEY. ^[d]

Supreme Court of Oregon

November 15, 1909

Appeal from Circuit Court, Baker County; William Smith, Judge.

Ira Brinkley was convicted of the larceny of a calf, and he appeals. Affirmed.

M.D. Clifford and M.L. Olmsted, for appellant.

W.S Levens, for the State.

EAKIN J.

This is a criminal action, in which defendant was convicted of larceny of a calf. The indictment is in the usual form.

The first error urged by defendant is that the animal alleged to have been stolen is "a calf," and that this is too indefinite, the word "calf" being applied to other things and animals as well as the offspring of the bovine family; but the latter is its primary application, and therefore must be so accepted, unless some other application appears to have been intended. Section 709, B. & C.Comp provides that the terms of a writing are presumed to have been used in their primary and general acceptation, and section 1311 provides that the indictment is sufficient in that respect if it describes the animal by the common name of its class, and therefore the indictment charges felony under section 1801, B. & C.Comp., and the allegation of value of the calf at $8, does not reduce the offense to petit larceny. The effect of the holding in State v. Minnick (Or.) 102 P. 605, and in State v. Hanlon, 32 Or. 95, 103, 48 P. 353, is only that the allegation of value, if less than $35, makes the indictment charging felony broad enough to include the lesser offense of petit larceny under section 1418, B. & C.Comp. The evidence of the state tended to show that on the morning of August 10 1908, defendant took three sucking calves from three cows, one of which cows was marked with the brand and earmark of W.H. Boyce, and that evening he butchered the three calves, and the next morning sold and delivered them to Henry Fawcett, a butcher in Baker City, according to an arrangement made with him several days before. Defendant urges that none of the calves have been identified as belonging to Boyce, or that, if one of them was the property of Boyce, yet it is not shown which one. The brand of W.H. Boyce, described as a "half circle A," and his earmark, were duly recorded, as provided by sections 4201, 4204, B. & C.Comp., which make them prima facie evidence of the ownership of the cow; and, although Boyce never saw the calf and did not know whether the cow referred to had a calf, yet such want of knowledge on his part is not fatal to the state's case, if the cow was his and had a calf. Other witnesses may be competent to establish such facts. The owner of a cow owns also the offspring, and the proof of the appearance of the cow was proof tending to show that the cow had passed through the period of gestation and had a calf, and, although it was not shown which of the three calves killed was the calf of the Boyce cow, because no such specific description of them was given or was possible, yet defendant was only prosecuted for the larceny of the calf of the Boyce cow, which calf, the proof tended to show, was killed and sold by defendant, and this is a sufficient identification of the calf alleged to have been taken. The brand and mark upon the Boyce cow was shown by Boyce to be his brand and mark, and being recorded, as provided by law, was sufficient to establish the ownership of the cow. There was testimony by Steve Osborn identifying as the property of Boyce a red, dehorned cow, marked with Boyce's brand and mark, which he saw in defendant's pasture, and which came to the fence, bawling and wanting out, her calf having been recently taken away, and her bag was full of milk. Wellman testified that he drove to defendant's pasture for him a red moolley or dehorned cow, being one of the three cows whose calves defendant told him he had killed. Also admissions of defendant made to other witnesses were proved to the effect that on August 10, 1908, he had killed the calf of the red moolley or dehorned cow, identified as the Boyce cow. The identity and ownership of the calf could only be established by the identity and ownership of the cow, and the evidence did tend to identify the calf as the property of Boyce.

The denial by the court of defendant's motion for a directed verdict interposed at the close of the state's testimony is urged by defendant as error. The motion, as disclosed by the record, is that the court "direct a verdict of not guilty, for the reason that the state has wholly failed to prove a cause sufficient to be submitted to the jury." Under the holding in State v. Tamler, 19 Or. 528, 25 P. 71, 9 L.R.A. 853, which holds that, unless there is a total failure of proof, a motion for a directed verdict in general terms will not bring upon appeal the question of the insufficiency of the proof,...