State v. Crossman, 26306.

• Decision Date: 06 January 1937
• Docket Number: 26306.
• Citation: 189 Wash. 124,63 P.2d 934
• Parties: STATE v. CROSSMAN et al.
• Court: Washington Supreme Court

63 P.2d 934

189 Wash. 124

STATE v. CROSSMAN et al.

No. 26306.

Supreme Court of Washington

January 6, 1937

Department 1.

Appeal from Superior Court, Mason County; D. F. Wright, Judge.

Edward Crossman and Wilfred Shorter were convicted of grand larceny and they appeal.

Affirmed.

Charles R. Lewis and Doane Brodie, both of Shelton, and George D Abel, of Montesano, for appellants.

M. W Logan, of Shelton, and Oliver R. Ingersoll, of Olympia, for the State.

GERAGHTY Justice.

The appellants, Edward Crossman and Wilfred Shorter, were convicted of the crime of grand larceny and sentenced to terms in the State Penitentiary. The information upon which they were tried charged that, '* * * on or about the 2nd day of April, 1936, they each then and there being, did each then and there jointly, wilfully unlawfully and feloniously take, steal and carry away one brown Swiss cow, the property of one J. C. Van Cleave, with the intent to defraud and deprive the owner thereof of his property, the said cow being of the value of more than Twenty-five dollars of lawful money of the United States of America.'

The evidence tended to show that, after being brought to the ground by a shot, the cow's throat was cut. A part of the carcass was discovered by the owner lying in an abandoned road; the hindquarters had been removed. With the carcass was found the remains of a large unborn heifer calf. The bones of the hindquarter were found buried on the premises of the appellant Crossman. The meat which had previously been removed from the bones had first been hidden, and later buried in the water of an adjoining bay, to avoid detection.

Crossman admitted the killing in a written confession, which recited that he had been aided by another person, unnamed. The evidence connecting Shorter with the crime was circumstantial, apart from an admission made by him to a deputy sheriff, in jail after his arrest.

When the report of the killing of the cow was made to the sheriff's office, a deputy was detailed to make an investigation. Suspicious circumstances pointed to Shorter's connection. He and Crossman had been cutting wood on the day the cow was slaughtered, April 2, 1936, and he stayed at Crossman's that night. In their operations, a Ford truck was used, borrowed by Shorter. The sheriff found tire tracks in the soft earth with peculiarities indicating they were made by the truck. There were also the prints of rubber boots, which the officer testified were made by the boots worn by Shorter at the time. The officer also testified to the presence of cow hair on clothing found in Shorter's home on the day following the killing and admitted by Shorter to have been worn the day Before . On the day following the killing, the sheriff interviewed Shorter, and, after his denial of complicity in the transaction, told him to report at the sheriff's office the next day. That evening, the sheriff visited the home of Van Cleave, owner of the cow, and found Shorter present. Van Cleave testified that, Before the arrival of the sheriff, Shorter had sought to settle the matter up and pay for the cow, as he intended to go to Alaska. The deputy sheriff testified that he asked Shorter, after his confinement in the jail, if he had 'anything to do with this cow out there,' and that Shorter answered: 'Well, I guess I did. If I hadn't been drinking I wouldn't have done it.' On cross-examination, the witness explained that the question and answer had relation to the killing of the cow, to which the conversation related. The appellants introduced no evidence.

The first contention of the appellants is that the theft of the live animal was not established by the evidence, but, at most, only the taking of the two hindquarters, the meat of which, owing to the condition of the cow, was worthless or, at any rate, of less value than twenty-five dollars. While it is admitted that the cow was worth $100 alive, there was no proof of the value of the meat taken, other than the statement of the owner that the meat was worthless except for dog food.

The shooting down of the cow and cutting of her throat were the means adopted to accomplish the theft. The legal effect of the manner in which possession of the cow was taken would not be different if she had been loaded alive into the truck and driven away. The appellants had a choice of means for the accomplishment of their purpose and chose the method disclosed by the evidence.

In a comparatively recent case, McIntosh v. State, 105 Neb. 328, 180 N.W. 573, 576, 12 A.L.R. 798, the record disclosed the following facts: The accused, having arranged to sell a chunk of meat, procured a rifle from one man and an axe from another and, in company with a companion, left town in an automobile on the afternoon of the same day. The complaining witness, having observed some commotion among his cattle, rode in that direction, and, on approaching, saw an automobile driving rapidly in the pasture. On investigation he discovered that one of his steers had been killed, and its head severed. The carcass had been dragged some distance from where the animal was shot. The accused, on being arrested, admitted the killing, stating that he shot the steer while sitting in his automobile and that it was dragged a distance from the spot and the head severed. It was contended by the accused that the circumstances did not show the stealing and carrying away of the steer; that there was no possession by him of the steer as a living animal. Commenting upon this contention, the court said: 'The testimony shows a clear and unmistakeable intent on the part of the accused to steal the steer and sell the meat. To aid himself in carrying out this purpose, he shot and...