State v. Carlson, 5623

• Decision Date: 06 May 1931
• Docket Number: 5623
• Citation: 298 P. 936,50 Idaho 634
• Parties: STATE, Respondent, v. CHRIS CARLSON, Appellant
• Court: Idaho Supreme Court

298 P. 936

50 Idaho 634

STATE, Respondent, v. CHRIS CARLSON, Appellant

No. 5623

Supreme Court of Idaho

May 6, 1931

CRIMINAL LAW-TRESPASS-HERDING SHEEP ON CATTLE RANGE-INTENT-EVIDENCE.

1. Evidence cattle association's employee told defendant that sheep could be run on range held admissible as bearing on defendant's intent in trespassing on range (C. S sec. 8333).

2. In prosecution for herding sheep on cattle range, refusing instruction calling jury's attention to period during which defendant deemed evidence established abandonment of range by cattle owners, held error (C. S., sec. 8333).

3. In prosecution for herding sheep on cattle range, refusing instruction covering knowledge of cattlemen that sheep were grazing over range as basis for establishing abandonment held error under evidence (C. S., sec. 8333).

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. C. J. Taylor, Presiding Judge.

Defendant Chris Carlson, was convicted of trespass upon a cattle range and appeals. Judgment reversed and cause remanded.

Reversed and remanded.

E. H. Casterlin and J. H. Andersen, for Appellant.

The intent to commit the act, as well as the commission thereof, are essential ingredients of a crime. It must be proved that the defendant knew, or had information from which a reasonable man under like circumstances would have known, that he was grazing, herding and pasturing his sheep upon a cattle range, and that sheep had not herded, grazed or pastured thereon prior to said time in the usual and customary use of said range. (C. S., sec. 6314; State v. Omaechevviaria, 27 Idaho 797, 152 P. 280; State v. Becker, 35 Idaho 568, 207 P. 429.)

The exclusive right of cattlemen to the use of a range first occupied by them may be abandoned by ceasing to use it or by permitting the customary use of it for sheep in common with cattle, without protest or asserting an exclusive right. (State v. Butterfield, 30 Idaho 415, 165 P. 218.)

Proof of customary use of a range for both cattle and sheep is proper evidence by which to determine the abandonment as a cattle range. (State v. Butterfield, supra.)

Fred J. Babcock, Attorney General, and Z. Reed Millar, Assistant Attorney General, for Respondent.

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. Both the limits and boundaries of the range are determined by authority of possession and the use of the range by the cattle growers in the usual and customary use of the cattle range and are questions of fact for the jury. (State v. Omaechevviaria, 27 Idaho 797, 152 P. 280.)

LEE, C. J. Budge, Givens, Varian and McNaughton, JJ., concur.

OPINION

LEE, C. J.

Defendant and appellant, Chris Carlson, was convicted of trespass upon a cattle range in violation of the provisions of C. S., sec. 8333, and duly appealed, assigning insufficiency of the evidence and numerous errors.

The evidence substantially conflicting in its nature was sufficient to sustain the verdict. Of the errors assigned three merit consideration. Appellant contended that the range in question was, at the time of his alleged trespass, a joint sheep and cattle range and that he believed that he had full right to enter thereon. At the trial, he offered to prove that in the year 1927 and on another occasion he had been told by an employee of the Pahsimaroi Cattle Association that the association was not interested in keeping local sheepmen off the disputed area, but that their action was directed against transient sheepmen and those belonging to nonresidents of the Pahsimaroi valley; that, if he would keep his sheep "up out of sight," there would be no objection to his running them on the watershed of Burnt Creek, which included the locality aforesaid. His offer was refused. While such evidence might have been incompetent to prove that the range was customarily used for both sheep and cattle, it was directly admissible as bearing upon appellant's intent. In State v. Omaechevviaria, 27 Idaho 797, 806, 152 P. 280, it was said: "There must be an intent to violate said Sec. 6872, supra,...