State v. Cason.

• Citation: 23 N.M. 77,167 P. 283
• Decision Date: 20 August 1917
• Docket Number: No. 1965.,1965.
• Parties: STATEv.CASON.
• Court: Supreme Court of New Mexico

23 N.M. 77

167 P. 283

STATE

v.CASON.

No. 1965.

Supreme Court of New Mexico.

Aug. 20, 1917.Rehearing Denied Sept. 10, 1917.

Syllabus by the Court.

The corpus delicti in larceny is constituted of two elements, that the property was lost by the owner, and that it was lost by a felonious taking.

In a trial for the larceny of neat cattle, evidence that tended to establish the identity of the cattle, their ownership in the person from whom their taking is charged to be larcenous by the indictment, and the possession of the cattle by the defendant is enough to make out a prima facie case of guilt and establish the corpus delicti.

An instruction that proof of a duly recorded brand is prima facie evidence that the person named in the certificate was the owner of said brand prior to the date of the recording of the same is not erroneous.

Where there is substantial evidence to support the verdict of the jury, it will not be disturbed on appeal.

Appeal from District Court, Grant County; Neblett, Judge.

Arnold Cason was convicted of the larceny and branding of cattle, and he appeals. Affirmed.

An instruction that proof of a duly recorded brand is prima facie evidence that the person named in the certificate was the owner of said brand prior to the date of the recording of the same is not erroneous.

Terrell & Black, of Silver City, for appellant.

H. S. Bowman, Asst. Atty. Gen., for the State.

HANNA, C. J.

The appellant, Arnold Cason, was tried at the March, 1916, term of the district court of Grant county under an indictment charging larceny of four head of cattle, the property of H. G. Gabilando, and the defacing, or what is commonly called the burning, of a certain brand upon the four head of cattle referred to. The facts, so far as need be stated, are that Gabilando was the owner of a certain ranch in the state of Arizona, not far distant from the New Mexico boundary, and had upon the ranch in Arizona and in New Mexico a considerable herd of cattle. His brand was commonly known as the swastika, which was not recorded in the state of New Mexico until after the larceny of the cattle referred to. The evidence discloses the fact that Gabilando had been using this brand for some years prior to having it recorded in this state. In the summer or fall of the year 1914 the appellant, Arnold Cason, was found in Grant county in the possession, and claiming to be the owner, of some five or six head of cattle branded with Cason's brand, which was known as the window sash. The prosecution showed that the cattle in question were originally branded with the swastika brand which had been changed into the window sash brand. The appellant was found guilty as charged, and sentenced to a term in the state penitentiary of from three to five years and the payment of a fine of $500, with costs, from which judgment he has prayed this appeal.

[1] Numerous assignments of error have been taken, but only those presented by appellant's brief will be considered in the order submitted; the first being that the evidence wholly fails to establish the corpus delicti of the crime charged. The corpus delicti in larceny is constituted of two elements, that the property was lost by the owner, and that it was lost by a felonious taking. 17 R. C. L. 64. Appellant urges that the indictment lays the ownership of the cattle in H. B. Gabilando, and that the only evidence supporting this ownership was a certified copy of his recorded brand. Gabilando's brand, as set out in the indictment and as proven by the certified copy of his brand, and commonly known as the swastika brand, is made as follows: >

It is contended by the appellant that the only evidence that any specific brand had been changed or altered, or as to any prior brand on the cattle in question, was that a brand made thus, > had been changed so as to make it appear as the window sash brand which is made as follows: >

[2] Appellant contends that there was no substantial evidence, or any evidence whatever, that the cattle ever belonged to or had been taken from the owner alleged in the indictment. The record, however, discloses that the appellant was found in possession of some five or six head of cattle, all of which were branded with his brand, i. e., the window sash, which he at that time claimed to own.

Witnesses for the state, with one exception, testified that the cattle were originally branded with the swastika, and that the later brand had been burned or changed into the window sash. The ownership of the swastika brand was proven not only by the certificate of registration, but also by the witness, Parks, who testified that he had known Gabilando for some years, and that his brand was the swastika brand. It is true the witnesses for the state made the so-called swastika brand in a different way from that set out in the brand certificate, but this discrepancy in the evidence was corrected by...