State v. Cardelli

• Decision Date: 01 April 1886
• Citation: 10 P. 433,19 Nev. 319
• Parties: STATE v. CARDELLI.
• Court: Nevada Supreme Court

10 P. 433

19 Nev. 319

STATE v. CARDELLI.

Supreme Court of Nevada

April 1, 1886

Appeal from First judicial district court, Storey county.

The opinion fully states the facts.

W. E F. Deal, for appellant.

W. H Davenport, Atty. Gen., and J. A. Stephens, Dist. Atty. of Storey Co., for the State.

HAWLEY J.

Appellant was convicted of the crime of grand larceny for feloniously taking "three steers and two young cows, (commonly called heifers,) all of which cattle were branded with the letters J. C. on the left hip, and marked with crop and split in the left ear, *** the property of Hugh Vail and John R Vail, partners, doing business under the firm name of Vail Bros." He claims that the evidence upon which he was convicted is insufficient in law to sustain the verdict in this: that there is no direct testimony, or other competent proof of the corpus delicti. The contention urged relates exclusively to the testimony submitted on the part of the prosecution as to the ownership of the cattle.

On the twenty-second of June, 1884, the Vail Bros. purchased of John Carlin the Carlin ranch, consisting of 4,500 acres of inclosed land, with a cattle range on the public lands of "25 miles each way," and a band of cattle,--"everything that Carlin owned." The cattle were at that time grazing on the range, and were not counted until several months after the purchase. The greater portion (over 1,000 head) of these cattle were branded and marked as specified in the indictment. The range over which these cattle roamed extends to the Cardelli ranch, and the Cooney ranch, owned by the Cardelli Bros., and some of the cattle were often seen in that vicinity. In the latter part of January, 1885, appellant called at the butcher-shop of Zeigler Bros., in Virginia City, and inquired if they wished to buy any cattle. John Zeigler said he would look at the cattle first. A few days thereafter he went to the Cardelli ranch, and from thence, in company with appellant, to the Cooney ranch, where five head of cattle were found in a barn. Appellant said he kept them in the barn because "he was afraid of them breaking the fence." These five head of cattle--three steers and two heifers--were purchased by Zeigler Bros., and delivered to them by appellant at their slaughter-house, on American flat, on the fifth of February. Either before or after the sale, appellant stated to Zeigler Bros. that he did not want his brother (Orlando) to know that he was selling any cattle. A few weeks after the cattle were slaughtered he said to Charles Zeigler that he wanted a sack "to go out to the slaughter-house and cut the brands out of the hides."

March 1st, Vail Bros. caused a notice to be published in the Daily Territorial Enterprise, at Virginia City, offering a reward for the arrest and conviction of any person guilty of stealing any of their cattle. About the fifteenth of March, Hugh Vail, having received information about the sale of the cattle, went to Virginia City, examined the hides taken from the five head of cattle, and identified them as "hides of the cattle" which Vail Bros. brought from Carlin. He testified positively, as did several other witnesses, that the cattle from which the hides were taken belonged to Vail Bros. He frankly acknowledged, however, that he had no means of identifying them "except by the brands and ear-marks." There was no other direct proof as to the loss of these cattle by Vail Bros. There was testimony to the effect that men engaged in the cattle business could always identify their cattle "by the brands and marks;" that "it is an easy matter to distinguish the Carlin cattle from any other cattle in that range;" that there is no difficulty in distinguishing the Carlin cattle from the Cardelli cattle by the brands and ear-marks; that the brand of the Cardelli Bros. was O. C.; that the experience of men who have for many years been engaged in this business is that brands of the same letters, owned by different persons, are not "exactly alike;" that the five hides examined by the witnesses belonged to cattle formerly owned by John Carlin; that Carlin "always vented his cattle when sold," except when sold to be slaughtered; that the branding-iron in the possession of Cardelli Bros. with the letters J. C. was different from Carlin's brand; that the Carlin brand is a "plain J. C., without any indentations in the iron;" that the Cardelli brand has an indentation stroke on top; that one "has the letters joined together," and the other "the letters are separate;" that "it is easy to distinguish one brand from the other;" that appellant, in December, 1884, sold four steers to William Hancock; that one of these was butchered, and the other three were alive at the time of this trial; that the living steers were by John R. Vail and others recognized and identified by the brands and marks as the cattle of Vail Bros.; that the age of the cattle purchased by Zeigler Bros. was, of the heifers, about two years, and of the steers about three years. This is substantially the testimony upon the part of the prosecution.

The testimony upon the part of the defense tended to show that in 1881 the Cardelli Bros. had a brand made with the letters J. C.; that in June of that year appellant and his brother, Fancredi, branded 11 calves (steers) and one heifer, and turned them out to roam at large upon the public lands; that these cattle had been seen at different times; that appellant, in the fall of 1884, made public search and inquiry for these cattle; and his defense was that the cattle sold to Zeigler and Hancock were the same cattle as branded by him and his brother in 1881; and that they were the true owners, or, at least, that appellant acted in good faith, believing them to be the cattle of Cardelli Bros. The testimony upon the part of the defense was in conflict with the testimony of the prosecution as to the venting of the cattle, when sold, by Carlin; the character and identity of brands and marks; and in other particulars.

1. Is this testimony sufficient to establish the corpus delicti? Every criminal charge necessarily involves two distinct propositions: (1) That a criminal act has been committed; (2) that the guilt of such act attaches to the particular person charged with the commission of the offense. In cases of larceny it is, of course, essential for the prosecution to prove that the property was feloniously taken from the person named in the indictment as the owner. "It must appear that the goods were stolen from the prosecutor; and if he, being a witness, cannot swear to the loss of the articles alleged to have been stolen from him, the prisoner must be acquitted." 3 Greenl. Ev. § 161.

In what manner may this proof be made? Must it always be direct and positive? Is it absolutely essential, in all cases, that the proof of the corpus delicti should be established independent of the other elements of the offense? While it is true that a person charged with the commission of a criminal offense is not called upon to answer the charge without satisfactory proof, upon the part of the prosecution, of the corpus delicti, yet it is not essential, in all cases, that there should be any direct evidence upon this point.

In addition to Greenleaf on Evidence, above quoted, appellant cites several authorities where, under the particular state of the testimony, it has been held that circumstantial evidence of the offense could not be accepted "as satisfactory in law, unless, besides this, there is direct evidence of the corpus delicti." Many of the cases are referred to in a note to section 1071, 1 Bish. Crim. Proc. Some of them are cases like People v. Williams, 57 Cal. 108, where no evidence of any kind was offered upon that point. Bishop, after citing the cases relied upon by appellant, concludes the section by saying:

"If we look at the matter as one of legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of this fact any more than any other. If the defendant should not be convicted when there has been no crime, so equally should he not be when he has not committed the crime, though somebody has; the one proposition is as important to be maintained as the other, yet neither should be put forward to exclude evidence which in reason ought to be convincing to the understanding of the jury."

In State v. Keeler the court said:

"Now, the rule should be adhered to, with the utmost and strictest tenacity, that the facts forming the basis of the offense, or corpus delicti, must be proved either by direct testimony, or by presumptive evidence of the most cogent or irresistible kind. In one of these methods the essential fact of facts must be established beyond a reasonable doubt. But if thus established, or if the jury can be and are satisfied of such facts beyond this reasonable doubt, it matters not whether they are conducted to this result by direct or presumptive evidence. In other words, while the proof should be clear and distinct, it is, not necessary that it should be direct and positive; for while that which is direct might be more satisfactory,--less liable to deceive and mislead,--this goes to its weight or effect, and by no means establishes that in no other way can the essential facts be shown with the requisite distinctness and clearness." 28 Iowa, 553.

The fact that the corpus delicti may be established by circumstantial evidence is well settled. 3 Greenl. Ev. §§ 30 31; Burrill, Cir. Ev. 680, 734; Wills, Cir. Ev. 201; Reg. v. Burton, Dears. Cr. Cas. 282; Rex v...