State v. Costin
| Decision Date | 24 January 1934 |
| Docket Number | 1791 |
| Citation | 46 Wyo. 463,28 P.2d 782 |
| Parties | STATE v. COSTIN |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Sweetwater County; V. J. TIDBALL Judge.
James Costin was convicted of grand larceny, and he appeals.
Affirmed.
For the appellant, there was a brief by C. E. Melvin of Green River and H. S. Ridgely of Cheyenne, and oral argument by Mr Ridgely.
The evidence in the case is wholly circumstantial. We feel that the case is governed by the rule announced in State v Morris, 41 Wyo. 128. The court erred in admitting plaintiff's Exhibit No. 1, a bale of fifteen coyote pelts, which were not sufficiently identified to be admissible in evidence against appellant. It is respectfully submitted that the circumstantial evidence relied upon by the prosecution in this case fails to meet the requirements of the law and is therefore insufficient to sustain the judgment.
For the respondent, there was a brief by Ray E. Lee, Attorney General, Oscar O. Natwick, Deputy Attorney General and William C. Snow, Assistant Attorney General, and oral argument by Mr. Natwick.
The rule followed in the Morris case cited by appellant is not applicable here for the reason that the state failed to establish the corpus delicti in the Morris case, whereas it was clearly established in the present case. Dalzell v. State, 7 Wyo. 450. Possession of property recently stolen is evidence of guilt. Kinney v. State, 36 Wyo. 466. Whether possession is "recent" is a question for the jury. Younger v. State, 12 Wyo. 24; Richey v. State, 28 Wyo. 117; McFetridge v. State, 32 Wyo. 185; Curran v. State, 12 Wyo. 553. The rule as to circumstantial evidence is clearly stated in Gardner v. State, 27 Wyo. 316. But the facts in that case fall far short of the facts proven in the case at bar. It is not necessary that the evidence should produce absolute certainty in the minds of the jurors or that it should dissipate mere conjectures and speculative doubts. Gardner v. State, supra. Personal possession by defendant of property recently stolen does not mean that he must have it on or about his person or clothing. State v. Humphreys, 203 P. 965. It is the policy of the law to protect property against theft. Section 33-113 R. S. 1931. Appellant cites no authorities on the question of identification of the coyote hides.
The defendant James Costin and one Sam McCourt were jointly indicted in Sweetwater County, Wyoming, for larceny on November 6, 1930, of 32 coyote hides belonging to the State of Wyoming, of the value of $ 145.00. It appears that Sam McCourt was tried separately a number of months prior to the time of the trial of the defendant Costin, the latter being detained in the Federal penitentiary during McCourt's trial. McCourt was acquitted. What the evidence was in his case we do not know, nor is it material here. The defendant Costin was tried in March, 1932, and was convicted of grand larceny, and he has appealed from the judgment rendered pursuant to such conviction.
1. It is assigned as error that the evidence is not sufficient to sustain the verdict, no question, however, being raised as to the ownership of the property or the value thereof. Nor is it argued that the property was not in fact stolen, and the chief argument seems to be directed to the point whether the defendant Costin or Sam McCourt committed the larceny. The main points relied on by the state to sustain the verdict is the opportunity which Costin, the defendant, had in stealing the property and his recent possession thereof thereafter, together with the circumstances connected therewith. The coyote hides were kept in a granary on the Rasmussen ranch, some 45 miles south of Rock Springs in this state, placed there by one Leonard Holst, who worked for the state of Wyoming, under the direction of the Biological Survey, trapping coyotes. On the date of the larceny he had in the granary 32 hides, some cured, and some uncured, the latter being still on stretchers. In addition to these hides there were three which belonged to one Nelson Rigley, making 35 in all. The larceny is claimed to have been committed on the night of November 6th, 1930. The defendant Costin was on the Rasmussen ranch on November 5th, 1930, having been called there for the purpose of taking one Frank Mokler, who was working on the ranch, to town. While there, and in the evening of November 5th, 1930, the defendant was in the granary above mentioned, where the hides were kept. The occasion for going there was the fact that Mokler kept a can (said by counsel for appellant to have been a still), which he wanted to take along as he went to town. At that time there were also on the ranch one Lem H. Cooley, who managed the Rasmussen ranch, and two strangers, who came on horseback, ate supper at the ranch, and left next morning. Much was made in the oral argument of counsel for appellant of the presence of these two strangers on the ranch. But as far as we can see, the point is without significance. Cooley testified that they were men rounding up cattle; that they left on the morning of November 6th, 1930, and that he saw the hides in the granary after they had left. Furthermore, there was testimony indicating that the tracks of their horses were followed two days thereafter, and it was found that these tracks did not turn back to the ranch after the men had left. Nor does it appear that Sam McCourt, who also lived in town, had ever been on the ranch, or that Frank Mokler or Cooley were in any way connected with the larceny in question. Hence there is no doubt that these facts might be grounds for suspicion for those subsequently investigating the crime that the defendant Costin might have had something to do with it, although we are in perfect accord with what was said in State v. Morris, 41 Wyo. 128, 283 P. 406, that an opportunity to cimmit a crime does not require a necessary inference that it was used. But there was much more shown in this case than the opportunity to commit the crime. It was discovered in the morning of the 7th of November, 1930, that the hides were gone. Tracks of two men were discovered, going to and from the granary, and to and from a place in the road where an automobile had turned about. The tracks of one of the men were shown to have been made by shoes, the tracks of the other man by a boot or boot-shoes, and it was further shown that McCourt usually wore the latter. Further, the undisputed and undenied testimony was that Costin and McCourt were in Green River during the early part of the evening of November 6th, 1930, and that they, though neither of them were engaged in any occupation, some time during that evening or night drove to Salt Lake City, Utah, in an automobile owned by the defendant Costin, with 35 coyote hides in the car. They arrived in Salt Lake City some time during the morning of November 7th, 1930, registered at the Wilson Hotel at 8:25 in the morning and both occupied room 202 of the hotel. Thereafter they drove to the store of R. C. Elliott & Co., dealers in hides, furs and wool, for the purpose of disposing of the hides. One A. M. Christensen was in the employ of R. C. Elliott & Co. at the time and bought the hides. According to his testimony, both Costin and McCourt came into the store; that he did his business with McCourt; but that, after he had offered the sum of $ 161.30 for the hides, McCourt went over a short distance to where Costin was and had a secret conference with him; that thereafter McCourt accepted the offer; that he, Christensen, then asked, in a voice loud enough for both to hear, to whom he should make out the check for the hides, and that McCourt, in a similar voice, told him to make it out to one Sam Thompson, which he did. The check was offered in evidence, and was endorsed by one Sam Tompson. Thereafter Oren L. Robinson, who lived at Rock Springs, and was the superior of Leonard Holst, went to Salt Lake City, arriving there on the morning of November 12th, 1930. After a search in several fur houses, he discovered the fact that Costin and McCourt had sold 35 hides to R. C. Elliott and Company on November 7th. Because of the peculiar characteristics of the treatment of the hides, he picked out 15 of them, marked them...
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