State v. Callaway, 2611

Citation267 P.2d 970,72 Wyo. 509
Decision Date09 March 1954
Docket NumberNo. 2611,2611
PartiesSTATE, v. CALLAWAY.
CourtWyoming Supreme Court

W. A. Muir, Rock Springs, for appellant.

Howard B. Black, Atty. Gen., Paul T. Liamos, Deputy Atty. Gen., James L. Hettinger, Robert A. McKay, Assts. Attys. Gen., John S. Mackey, County and Pros. Atty., Pinedale, for respondent.

HARNSBERGER, Justice.

The appellant was tried and convicted under Section 9-317, Wyoming Compiled Statutes, 1945, which reads as follows:

'Whoever buys, receives, conceals or aids in the concealment of anything of value, which has been stolen, taken by robbers, embezzled or obtained by false pretense, knowing the same to have been stolen, taken by robbers, embezzled or obtained by false pretense, shall, if the goods are of the value of twenty-five dollars ($25.00) or upwards, suffer the punishment prescribed for grand larceny, and if the goods are worth less than twenty-five dollars ($25.00), shall suffer the punishment prescribed for petit larceny.'

The information charged that defendant did '* * * wilfully, unlawfully and feloniously receive, conceal and aid in the concealment of the carcass of one Hereford cow, branded Bar Cross, (symbol), on Left Ribs, of the value of $250.00, said carcass of said Hereford cow branded Bar Cross, (symbol), on Left Ribs, having been stolen from the Bar Cross Land & Livestock Company, a Wyoming corporation, and the said H. H. Callaway knowing at the time of receiving, concealing and aiding in the concealment of the carcass of said Hereford cow that the same had been stolen.' The jury's verdict found the defendant guilty as charged and ascertained and declared the value of the property received by the defendant to be $250. Direct appeal to this court has been taken by the defendant from the judgment and sentence pronounced upon that verdict.

Before the trial a defense motion to suppress certain evidence obtained without search warrant was sustained and a demurrer to the information was overruled and appellants say this was reversible error in that the information fails to allege or set out the name or names of the persons who stole the property in question; that it does not allege a felonious taking of the property by the persons supposed to have stolen the same and that it does not allege the time or place of the larceny.

In Curran v. State, 12 Wyo. 553, 76 P. 577, this court held that in charging the crime of receiving stolen property, the name of the thief was immaterial and that it was unnecessary either to allege the name of the thief or that the name of the thief was unknown. Furthermore, the court announced that the material facts are (1) the receipt (2) of goods which have been stolen, and (3) knowing them to have been stolen. See also 45 Am.Jur., Receiving Stolen Property, 384, 385, Sec. 2. The essential elements of the crime which render its fruits 'stolen property', were not included by the court as material facts required to be alleged in an information charging the commission of the statutory substantive crime of receiving, concealing and aiding in the concealing of something of value which has been stolen, knowing the same to have been stolen.

Ordinarily it is sufficient that the information charge a statutory crime substantially in the language of the statute, although as in McGinnis v. State, 16 Wyo. 72, 91 P. 936, 944, it was recognized '* * * that that rule has no application as to a common-law crime, where the statute has defined it in generic terms, but that in such case the information or indictment would be insufficient in merely following the statute. * * *' But our statute is not couched merely in generic terms, it fully, directly, expressly and without any uncertainty or ambiguity, sets forth all of the elements which this court has said are necessary to constitute the offense intended to be punished. Counsel has cited State v. Hall, 27 Wyo. 224, 194 P. 476, as supporting his position in demurring, but we cannot follow his reasoning. All we find in that case is that Hall was prosecuted under a penal statute requiring the owner or controller of sheep that had been dipped in accordance with law, to file an affidavit showing that fact. The information failed to state that the sheep in question had been dipped, in the absence of which fact, no crime would have been committed. For this reason, the demurrer to the information was sustained.

We see no reason to change or modify the holding in Curran v. State, supra, nor was it necessary for the information to allege a felonious taking of the property by the persons supposed to have stolen the same or to allege the time and place of the larceny.

The appellant insists he was prejudiced by the court's admission of evidence relating to the head, hide, udder and legs of the animal from which the state claimed the carcass in question was taken, and by the admission in evidence of these exhibits. From the authorities the appellant submits, we might surmise he suggests these exhibits were too gruesome and tended to inflame the jury, or we might conclude his contention is that these items were not sufficiently identified or connected with the defendant and the crime charged. We think there is little, if any, merit in either case.

The court unquestionably has a reasonable discretion which it may exercise in determining whether such exhibits are too gruesome or inflammatory and, unless this prerogative is manifestly abused, this court will not interfere.

The relevancy, the materiality and the connection of these exhibits with the crime informed against is so patent when considered in connection with testimony showing the exhibits corresponded to parts of the very animal which the state claimed was the animal whose carcass had been stolen and unlawfully received and, together with other testimony relative to the killing of such an animal, its being dressed out, of similar parts having been buried by the thieves at the place where the exhibits were discovered, and the identity of the brand on the hide with the brand of the company which the information stated to be the owner of the stolen property, all coupled with the positive identification of the exhibits by one of the thieves and many other similar details, that it seems unnecessary to further discuss the matter.

Certain evidence in behalf of the state was given by witnesses who produced and identified the hide, head, udder, and legs of a two year old cow, the hide bearing a brand known as the Bar Cross, shown as (symbol), and other evidence proving that this brand belonged to the Bar Cross Land and Livestock Company, a Wyoming corporation of which company one Norman Barlow is the manager, the treasurer and a director. Testimony also showed these parts of a cow were found buried on the Lookout Mountain range in Sublette county, Wyoming, where Mr. Barlow ran the cattle belonging to his company, and where the remains of such a cow had been placed by the two young men who had killed it. Mr. Barlow testified to the corporate existence of the Bar Cross Land and Livestock Company and that the approximate value of the animal in question was $250.

An important witness for the prosecution was one of two young men, who at the time had been employed by the defendant and lived at the Middle Butte Ranch where the defendant and his partner resided and operated a 'dude' business. This testimony shows that sometime around 8:00 o'clock P.M. on the evening of July 1, 1952, the witness and the other employee left the defendant's ranch in a pick-up truck intending to hunt for wild game; that as they were about to leave, the defendant said to them 'Don't come home without the liver;' that at a place some seven or eight miles from the ranch these employees shot and killed a two year old cow with a .22 high powered rifle belonging to the defendant, dressed out the cow, cut it in half, buried the entrails, head, hide, udder and feet, loaded the halves of the carcass into the pick-up and drove the 'long way' back to the defendant's Middle Butte Ranch, arriving between 11:00 o'clock P.M. and 1:00 o'clock A.M. that night. They went to the washhouse to clean up when the defendant came there and asked what they had gotten. When he was told they had a moose the defendant said, 'I don't believe you,' whereupon defendant was told they had in fact killed the cow. When the place of the killing was described to the defendant, he said 'That is a pretty poor place to get it because it is bad to hide it there.' Later when asked where the meat was to be put, the defendant said, 'Bring it up to where we can wash it off,' and defendant then got a hose, connected it to the water line and turned on the water to wash off the meat and the truck. The defendant also said something about hanging the meat out and that if somebody found it they would be in trouble over it. The defendant and one of the employees got in the truck and brought the meat out and quartered it with a meat saw, which the defendant produced, after which the meat was taken into the cookhouse, placed on the floor and the defendant and the employees cut it up into chunks and put it in the deepfreeze. During this time the witness said, 'Well, I reckon if we get caught, this is it,' and the defendant replied, 'No, I have skinned out a few myself and you boys haven't done nothing I haven't done or wouldn't do myself.' It was also stated during this conversation that the cow was Barlow's because he was the only man that runs cattle on Lookout Mountain where the cow was killed.

The only other evidence which is of much importance at this time was given by a neighbor of the defendant, who said he went to the Middle Butte Ranch at 6:30 o'clock on the morning of July 2, 1952, to use the 'phone; that while telephoning he saw the defendant go to the deepfreeze and open it; that the deepfreeze was full of meat; that the defendant punched the meat a couple of times with his hand; that the witness asked...

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18 cases
  • Garcia v. State, 88-205
    • United States
    • Wyoming Supreme Court
    • July 13, 1989
    ...of stolen goods committed the actual theft. This court has repeatedly rejected such a requirement. See generally State v. Callaway, 72 Wyo. 509, 267 P.2d 970 (1954); Curran v. State, 12 Wyo. 553, 76 P. 577 (1904). Appellant fails to consider that the evil which the legislature intended to a......
  • Sweets v. State
    • United States
    • Wyoming Supreme Court
    • August 14, 2013
    ...of stolen goods committed the actual theft. This court has repeatedly rejected such a requirement. See generally State v. Callaway, 72 Wyo. 509, 267 P.2d 970 (1954); Curran v. State, 12 Wyo. 553, 76 P. 577 (1904). Appellant fails to consider that the evil which the legislature intended to a......
  • State v. Thibodeau
    • United States
    • Maine Supreme Court
    • March 22, 1974
    ...not allege the name of the person who stole the property. Niece v. Commonwealth, 1948, 307 Ky. 760, 212 S.W.2d 291; State v. Callaway, 1954, 72 Wyo. 509, 267 P.2d 970; People v. Allen, 1950, 407 Ill. 596, 96 N.E.2d 446. Nor is it necessary to allege the name of the person from whom the defe......
  • Jones v. State
    • United States
    • Wyoming Supreme Court
    • July 14, 1978
    ...v. State, Wyo., 522 P.2d 1004; Parker v. State, 24 Wyo. 491, 161 P. 552; Gardner v. State, 27 Wyo. 316, 196 P. 750; and State v. Callaway, 72 Wyo. 509, 267 P.2d 970. The "plain-error" doctrine will be applied only where the error seriously affects the fairness or integrity of judicial proce......
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