State v. Burmeister

• Decision Date: 30 December 1937
• Docket Number: 7977
• Citation: 65 S.D. 600,277 N.W. 30
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. WILLIAM BURMEISTER and Edward Burmeister, Appellants.
• Court: South Dakota Supreme Court

65 S.D. 600

277 N.W. 30

STATE OF SOUTH DAKOTA, Respondent,

v.

WILLIAM BURMEISTER and Edward Burmeister, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Meade County, SD Hon. James McNenny, Judge #7977—Affirmed Atwater & Helm, Sturgis, SD Attorneys for Appellants. Clair Roddewig, Attorney General D. C. Walsh, Asst. Attorney General, Pierre, SD Attorneys for the State. Opinion filed Dec 30, 1937

ROBERTS, J.

Defendants were jointly tried and convicted in Meade county of the larceny of 16 head of cattle, the property of E. R. Angel, and from the judgment of conviction and the order overruling their motion for new trial they appeal, relying principally for reversal upon the insufficiency of the evidence to prove that the defendants were connected with the alleged larceny or that the offense, if any, was committed in Meade county. It appears from the evidence that the ranch of the complaining witness, E. R. Angel, is in the southeast corner of Meade county, 8 or 9 miles west of the Cheyenne river, which flows in a northeasterly direction forming a part of the boundary line between Meade and Pennington counties. On the last day of June or the 1st day of July, 1935, the complaining witness saw his cattle, 28 in all, in his pasture. On July 14, he discovered that 16 head of his cattle were missing, including a holstein steer, a roan cow, a red and white spotted heifer, and two brock-faced steers. The pasture fence of three wires was up and the gate was closed, but it wasn’t fastened in the way he had always fastened it. Searching for the cattle, the complaining witness on July 16 saw the defendant Ed Burmeister, who was employed on a ranch 6 or 8 miles northeast of the Angel ranch, and inquired if Burmeister had seen his missing cattle and was told by the defendant that he had not seen them.

B. E. Latham saw the missing cattle along the Cheyenne river about the middle of July. This witness for the State testified: “I live four miles north of Wasta, in Pennington County, about three-fourths of a mile from the Meade County line. I run my cattle in Meade County. I saw a bunch of strange cattle. I noticed the natural markings and could remember the colors very easily. I recall one holstein steer, one roan cow, a brockle-faced steer, and the others were dunham class of cattle. They seemed to be coming back west when I met them. I turned them around and drove them east across the river. I saw them the next day. The second time I saw them they were right where we had put in the drift fence. They were in Meade County on the west side of the river. There were seventeen head. The branded cow I found out belonged to L. D. Sorenson. He lives up the river about four or five miles in Pennington County. Both times I drove them east just across the river from the drift fence.”

J. J. Trepanier, a witness for the State, testified that he resides 11 miles southeast of Wasta; that he saw defendant Ed Burmeister at about 5 o’clock on the morning of July 18 on horseback driving cattle. He testified that the defendant “was pushing them right along to the southeast. They were going into the head wind, approximately sixteen head.” On July 18, a man whose name was not known and who was not identified by either the prosecution or the defense, but who was riding a horse that bore the brand and description of a horse owned by defendant Ed Burmeister, was seen driving the stolen cattle in the neighborhood of Conata, which place is approximately 30 miles south and 15 miles east of the Angel ranch.

Chris Heuther, a witness for the State, testified: “I reside at Conata in the Bad Lands. I know the defendant William Burmeister. I got acquainted with him a couple of years ago. He moved in there southeast of Conata with his cattle. He had his cattle in there at least two years. On the second day of August, he came over in the morning and made an agreement to hire me with a truck. I was to haul ten head of cattle. I did not see the cattle. Bill said they were east from Conata. I told him I couldn’t haul them if my boy wouldn’t drive the truck. I believe he said they were strays. He had his cattle in southeast of Conata. He moved them from Conata around by Scenic. He and I went to the ranch to see whether my son could get away. My son said he could. On August 4th, the boy drove up with the truck loaded with the cattle and the truck stood in front of my store for about an hour. Bill said: ‘You can sell the cattle in our name if you want to or in the ‘boy’s name.’” When the son, Edward Huether, and this defendant reached Chamberlain they were stopped by the sheriff of Brule county who took possession of the cattle. The son testified that Burmeister told him that the cattle were his estrays and said nothing whatever about having traded for them.

Frank Walker, a witness for the State, testified; “I reside five miles southeast of Conata on the reservation line. I remember the occasion when William Burmeister was arrested in Chamberlain. I had seen him that morning. He had stayed at my place that night and had been there for five or six days before that. He was looking for his cattle. I did not see him with any cattle. He stayed nights there at my place during that period excepting one night. Immediately preceding that time there was a man riding after Bill’s cattle. He was Tim Marvin, a brother-in-law, I believe.”

William Burmeister testifying in his own behalf stated that in May, 1935, he moved his herd of cattle from the vicinity of Conata to leased land south of Scenic; that for several days prior to the trucking of the cattle he was in the vicinity of Conata for the purpose of rounding up estrays. Testifying as to the manner in which he acquired the cattle belonging to the complaining witness, he said: “There was a time when I was riding in the basin that I met someone with some cattle. I don’t remember exactly what date it was. It was right close to the first of August. I did not see this man coming into the basin. He and the cattle were on the creek there in the basin. I made a deal with that man for those cattle. He wanted to trade off the cattle and I traded him four head of horses for them. The horses were driven away by that man. He said he lived over north of the wall. He went in that direction when he left with the horses. I don’t know this man. I did not ask his name. He did not ask my name.” The brother Ed Burmeister denied that he had ever been in possession of any of these cattle.

This court seems committed to the view that the possession of recently stolen property by an accused and a third person connected with the original taking, where the joint possession appears to have originated subsequently, does not make such possession that of the accused, in the absence of other evidence, to the extent of justifying a jury in finding the accused guilty of larceny. State v. Mern, 164 N.W. 76. It is urged that the evidence under consideration is subject to the same objection. In the present case assertion of possession and exclusive dominion over the stolen property by defendant William Burmeister is unquestioned. There are facts and circumstances tending to connect him more or less directly with the theft and to show a preconceived plan to receive and dispose of the stolen cattle. When he was arrested, he claimed and later so testified that he met a stranger on the prairie in the vicinity of Conata driving 10 head of cattle and that he traded 4 horses for these cattle. He gave an indefinite description of the stranger, did not inquire as to his name, or make any subsequent effort to verify his claim. Contradictory statements were made by him to Chris Huether and his son Edward. This defendant told them that these cattle were estrays which he had failed to find when he moved his cattle from the vicinity of Conata during the previous spring. He admitted that he had been in that vicinity for several days prior to making shipment of the stolen cattle and had stated to persons there residing that he was searching for estrays. The reasonableness and credibility of the explanation given by the accused as to the manner in which he acquired possession of this stolen property was a question for the jury in connection with other facts and circumstances in evidence State v. George, 165 N.W. 248; State v. Larson, 172 N.W. 114; Johnson v. Johnson, 210 N.W. 155; State v. Brundage, 220 N.W. 473. The defendant Edward Burmeister was seen driving these cattle on the morning of July 18, in the direction of the place where they were shortly thereafter admittedly in the possession of his brother William. This was contradicted by evidence offered for the purpose of showing that he was at his home at that time. We are of the opinion that the evidence was clearly sufficient to convict the defendants of larceny and upon the record before us we cannot say that the verdict was not an honest expression of the jury reached in an intelligent exercise of their discretion.

As to the contention that the evidence does not show the crime to have been committed in Meade county, we think that there was sufficient evidence to take this question of venue to the jury. The venue of an offense may be proved like any other fact in a criminal case. Absence of direct proof of venue does not defeat: conviction where it is properly inferable from the evidence. It appears from the record that the owner of the stolen cattle resided in Meade county and the cattle were confined in a pasture near the dwelling of the complaining witness. True, the cattle were seen by B. E. Latham along the Cheyenne river and were on two different occasions driven by him across the river into Pennington county. While it was possible for the stolen cattle to have been outside of the county of Meade at the time of their theft, yet the probabilities are so strong that they were taken from the pasture of the owner that we cannot say that the jury was not...