State v. Compton, 5486
| Citation | 57 N.M. 227,1953 NMSC 36,257 P.2d 915 |
| Decision Date | 19 May 1953 |
| Docket Number | No. 5486,5486 |
| Parties | STATE v. COMPTON. |
| Court | Supreme Court of New Mexico |
Garland & Sanders, Las Cruces, Benjamin M. Sherman, Deming, H. A. Kiker, Santa Fe, for appellant.
Joe L. Martinez, Atty. Gen., Frank B. Zinn, Asst. Atty. Gen., J. R. Wrinkle, Sp. Pros., Silver City, for appellee.
The defendant has filed a motion for rehearing and upon consideration thereof, the opinion heretofore filed has been withdrawn and the one to follow is substituted therefor.
The defendant asks us to reverse two convictions suffered by him in the district court of Grant County for the larceny of cattle, in the one case a heifer calf being the subject of the larceny and in the other a bull calf, both belonging to Victoria Land and Cattle Company. The two cases were based on different informations but were consolidated for purposes of trial, following which separate sentences to run concurrently were imposed calling for confinement in the state penitentiary, after a verdict of guilty in each case. The defendant prosecutes this appeal in an effort to secure a new trial of each charge filed against him.
The defendant was foreman during 1950 of the Todhunter ranch in Grant County, owned by Mrs. Margaret Todhunter, consisting of some 75 sections of land bordering at the Southwest corner for a distance of two miles the ranch of Victoria Land and Cattle Company, sometimes called the Diamond A ranch. He had previously worked for Mrs. Todhunter for four months in 1947, six months in 1948 and from April 13, 1949, to the time of his arrest on September 28, 1950. He lived alone on the ranch during the period between Jury 22, 1950 and September 1, 1950, when two young boys, one 11 and the other 12 years of age, sons of neighboring ranchers, spent a considerable portion of the time with him on the ranch, apparently assiting in the performance of such odd jobs as they were capable of doing. Mrs. Todhunter, owner of the ranch, was absent on a vacation in Hawaii between July 22, 1950, and September 1, 1950. She returned to New Mexico and her home on the ranch at date last mentioned.
The day after defendant's arrest the brand inspector of Cattle Sanitary Board for this territory with eleven others assisting conducted a roundup of the cattle on the Todhunter ranch. It produced 326 Todhunter cows and 322 calves belonging to them; also 101 calves of which 41 steer calves bore the Todhunter brand, 3 unmarked heifers and 2 unmarked bull calves and the remainder having a cropped left ear, a marking employed somewhat frequently by ranchers, including the defendant. There were no criminal charges of any kind filed or pressed as to the 101 calves rounded up by the brand inspector and his helpers, except the two that are the subject of this prosecution and 97 of these calves were subsequently sold by Cattle Sanitary Board as unclaimed animals.
The Todhunter ranch is cut up into four or five pastures rather than constituting one large pasture. In the northwest corner of the ranch there was a location known as the 'Big Mill' section due, no doubt, to the fact that it was the site of a large windmill and watering tank for use by the cattle grazing in that part of the ranch. Visiting this section of the ranch during the roundup the brand inspector and his men found a small pasture of about 80 acres fenced off within a larger one of about 4 sections. It was called a 'weaning trap' and was used for confining calves separate and apart from their mothers during the weaning period.
It is the practice to have a wire corral inside the weaning trap in which calves being weaned are placed for two or three days or until they get sore noses from 'rubbing' or 'butting' them against the wire fence around the corral. In other words, as testified by the brand inspector 'they get them fence-broke * * * and then put them out in another pasture.' The roundup party found a cow and four calves in this weaning trap, one of which belonged to and sucked her. The cow was what is known in ranching parlance as a 'fighter' cow. One of the four calves in the weaning pen was hers. Two others of the four sucked other cows found on the Todhunter ranch. The last of the four, a heifer with a bobbed tail did not suck any cow on the Todhunter ranch. The roundup also produced an unmarked, unbranded bull calf which none of the Todhunter cows would claim.
The brand inspector, J. A. Miller, testified further concerning the weaning trap and the cow and calves found there, as follows:
'Q. As I understand it, Mr. Miller, from your testimony, that this eighty acre pasture is inside the four section pasture that is cut off from the big pasture. A. Yes.
'Q. Does the four section pasture here at any point or any place border on the Victoria Land and Cattle Company? A. No. sir.
'Q. Does the eighty acre pasture border on the Victoria Land and Cattle Company? A. It does not.
* * *
* * *
'Q. Now, just go ahead and tell the jury what you did when you rode up and went into the weaning trap? A. We took the calves and put them in the corral.
'Q. Did you have any trouble with the calves or anything of that sort? A.
Not any trouble with the calf. With the cow we had trouble.
As stated above, one of the four calves in the weaning trap belonged to the 'fighter' cow. The roundup party 'bobbed' the tails of these other three calves, after getting them in the corral, indeed, one of them already had a 'bodded' tail but as said by a witness they 'bodded off the tail some more.' These three were all heifer calves and after bobbing their tails they were turned out with the other cattle which had been rounded up and were being held outside the weaning trap. When they began to mingle with the other cattle one of the three calves mentioned (not the one with its tail already bobbed), began sucking a cow bearing the Diamond A or Victoria Land and Cattle Company brand. Next day they found still another of the three calves mentioned, other than the one with its tail already bobbed, had found its mother in the cattle rounded up and was with her, a cow bearing the brand of a neighboring rancher named Hightower.
Soon after the roundup was completed, Victoria Land and Cattle Company, owner of a ranch adjoining the Todhunter ranch, discovered some wet cows belonging to it with enlarged bags and took them to Deming. A Victoria cow mothered the bull calf rounded up on the Todhunter ranch and an employee of the Victoria ranch, having recognized the heifer calf, brought in a Victoria cow which claimed it. The Todhunter ranch is accessible from the Victoria ranch by a road along a gas line which has cattle guards and gates. Employees of the gas company occasionally used this road and had keys for the gates.
In view of the fact that the court is of divided opinion as to how this appeal should be determined, a majority entertaining the view that it sould be affirmed and a minority that it should be reversed and a new trial awarded, the errors assigned will be treated in a somewhat different order than otherwise would be the case. This is done so as to enable us to treat first in our opinion the controversial issue we decide, then follow this by resolving other errors referred to but not decided in an opinion proposed by Mr. Justice McGhee due to the fact that his opinion ordered a reversal and the errors were such as not likely to occur on a new trial. They are three in number and when they have been resolved by us there will next follow and in his language the portion of the opinion submitted by Mr. Justice McGhee on which we were and still are in agreement. We thus give him credit for the portion of this opinion which he wrote (1) relative to drawing emergency panel for jurors and (2) refusal to defendant of five peremptory challenges as to each of two charges being tried together. Our treatment of the motion for rehearing will close the opinion.
Thus it is, as already indicated, that we first take up for decision the error assigned over which we disagree. It relates to error claimed to inhere in certain instructions given and refused on submitting the case to the jury. Actually, the claimed vice in the given instruction is to be found in the use of the phrase 'possession or control' in instruction No. 7 and in the refusal of defendant's specially requested instructions Nos. 2 and 3. In order, therefore, to understand the nature of this objection we must set out the two instructions given which deal with the effect of 'possession' of recently stolen property in larceny cases. They are as follows:
'You must in addition, further find the other elements of the crime heretofore included in other instructions.
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