State v. Cudney

• Decision Date: 04 October 1923
• Docket Number: 2593.
• Parties: STATE v. CUDNEY.
• Court: Nevada Supreme Court

218 P. 736

47 Nev. 224

STATE v. CUDNEY.

No. 2593.

Supreme Court of Nevada

October 4, 1923

Appeal from District Court, Elko County; Wm. E. Orr, Judge.

Frank Cudney was convicted of larceny, and he appeals. Affirmed.

James Byers, of Elko, for appellant.

H. U Castle, Ex-Dist. Atty., of Elko, M. A. Diskin, Atty. Gen and Thos. E. Powell, Deputy Atty. Gen., for the State.

SANDERS J.

Frank Cudney was informed against, tried, and convicted of having stolen, on the 17th day of May, 1922, a bag of wool weighing 325 pounds, of the value of $104, the personal goods and property of Frank Harmer. The facts are substantially as follows:

On the 17th day of May, 1922, Frank Harmer was engaged in the auto freight business, and had been employed by Joe Sustacho to haul a number of bags of wool from Hennen's sheep shearing corral, in Elko county, into the city of Elko, to be delivered at the Western Pacific depot. When he reached a point on the Elko-Lamoille highway, on the outskirts of the city of Elko, the bag of wool, alleged to have been stolen fell from his truck. He made no attempt, because of its weight, to replace it, left it in the highway, and went on with his load into Elko, with the intention of returning. When he returned, four or five hours later, to get the bag of wool, he did not find it. Harmer claimed that the bag bore a brand mark, "Circle H," stamped on the bag by one of the men who had assisted in loading it upon his truck; that there was a three-cornered tear in the bag, six or seven inches one way and about four inches the other. On cross-examination he testified that the wool belonged to Joe Sustacho and a partner of his, whose name he did not know. A Mr. Hennen, a witness for the defendant, testified that Joe Sustacho had associated with him in the sheep business Raphael M. Gambo and Frisco Gotea. No owner was called as a witness in the case.

Harmer, upon inquiry, was informed that a bag of wool had been seen on an automobile, which answered the description of Frank Cudney's, on the night of the 17th of May, and upon this information, without notice to Cudney, on the 19th of May, he obtained a search warrant accusing Cudney of the theft of the wool, and caused the same to be delivered into the hands of the sheriff of Elko county to be executed. The sheriff and his undersheriff, on the afternoon of the 19th, went to the premises of Cudney, described in the warrant as being Cudney's "road house," situate about eight miles distant from the city of Elko on the Lamoille road, to execute the warrant. When Cudney was informed by the sheriff that he had a warrant to search his place for wool, Cudney said, "Wool?" The sheriff said, "Yes; do you want the warrant read?" Cudney answered, "Yes." Both officers testified that Mrs. Cudney then appeared and wanted to know what the trouble was; that when informed she said, "You see they are not going to give us time to go in to-morrow and advertise;" or, as expressed by the undersheriff, "Now, you see they don't intend to give us a chance to advertise that wool; we were going to town to-morrow and advertise it." Upon reading the warrant, Cudney led the officers to the wool, which was in 13 small sacks, covered with hay, in the manger of his barn, and pointed out to them the bag from which it had been taken, hanging on a fence near by. The officers brought the wool into Elko. Cudney was afterwards arrested, taken before a justice of the peace, and bound over to the district court.

Upon the trial Cudney offered himself as a witness in his own behalf, and admitted that on the night of the 17th of May, about the hour of 10 o'clock, when in company with his wife and boy, returning from Elko, he saw the bag of wool in the highway, stopped his automobile, examined the bag, withdrew a number of pelts through the tear in the bag, and loaded it on his car and drove home; that at the time he first took the wool he did not see any mark upon the bag or pelts, but afterwards discovered that the bag bore the brand mark "Circle H," which did not mean anything to him, as it was indistinct and could not be made out. He claimed that he afterwards put the wool into 13 small sacks and placed it in the manger in his barn; that, the weather being rainy and his barn leaky, his boy covered the sacks with hay, but not so as to completely conceal them. He claimed that he had no intention of stealing the wool and that he intended to advertise it. In connection with his testimony a letter, bearing date on the 18th of May, written by Mrs. Cudney and directed to the Elko Independent, was introduced in evidence, which reads as follows:

"Editor Independent--Dear Sir: Will you please insert this ad. in Sat. issue 'Found one sack of wool on Lamoille road, inquire of Frank Cudney. Owner pay adv.' I will pay you for this ad. Sat. when I come to town."

The editor of the newspaper produced on the trial the envelope and letter, showing that the letter was posted in the post office at Elko on May 19, 3:30 p. m. Other circumstances were detailed by the witness Cudney, tending to show his good faith in the matter and that he had no intention of stealing the wool, and that his prosecution was prompted by ill will and malice on the part of Harmer. The jury returned a verdict of guilty, and the court, upon overruling his motion for a new trial, pronounced judgment upon the verdict and sentenced the defendant to state's prison for a period of not less than 2 years nor more than 14 years, where he is now incarcerated. The defendant has appealed from the order denying his motion for a new trial and from the judgment.

When the state had concluded its case in chief, the defendant moved for a directed verdict and dismissal, upon the ground that there was a material variance between the ownership as charged in the information and that proved. The motion was denied. In this connection the jury was instructed to the effect that, if they believed from the evidence that the bag of...