State v. Carlson, 5623

• Court: United States State Supreme Court of Idaho
• Writing for the Court: LEE, C. J.
• Citation: 298 P. 936,50 Idaho 634
• Parties: STATE, Respondent, v. CHRIS CARLSON, Appellant
• Docket Number: 5623
• Decision Date: 06 May 1931

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...