State v. Curry.

• Decision Date: 15 January 1927
• Docket Number: No. 3067.,3067.
• Parties: STATEv.CURRY.
• Court: New Mexico Supreme Court

32 N.M. 219

252 P. 994

STATE

v.CURRY.

No. 3067.

Supreme Court of New Mexico.

Jan. 15, 1927.

Syllabus by the Court.

Where the verdict of the jury is not supported by substantial evidence, judgment upon such verdict will be set aside on appeal.

Larceny is the felonious stealing and carrying away, etc., of the personal property of another; every larceny including a trespass to the possession, which cannot exist unless the property was in the possession of the person from whom it is charged to have been stolen.

Appeal from District Court, Quay County; Hatch, Judge.

W. T. Curry was convicted of the larceny of a cow, and he appeals. Reversed and remanded for a new trial.

Evidence of larceny of cow held insufficient to support conviction. Code 1915, § 1613, as amended by Laws 1921, c. 123.

James L. Briscoe, of Tucumcari, for appellant.

J. W. Armstrong, Atty. Gen., and J. N. Bujac, Asst. Atty. Gen., for the State.

BICKLEY, J.

[1] Appellant was convicted of the charge of larceny of one neat cattle, under the provisions of chapter 123, Laws of 1921, which is amendatory of section 1613, Code 1915. The indictment charges that the said animal was the property of Ethel McMurren, who is the wife of J. C. McMurren. It appears that Mr. McMurren made some kind of a deal with Doc Curry, son of the defendant, whereby J. C. McMurren was to trade a cow belonging to Ethel McMurren to Doc Curry for the cow here in question. The animal which was the subject of the alleged larceny had been in the McMurren pasture between 65 and 70 days. Some difficulty arose over the transaction between the McMurrens and Doc Curry, and on September 10, 1924, J. C. McMurren took the cow in question and put her in the pasture known as the Curry horse pasture, for the reason, as Mr. McMurren stated, Doc Curry did not carry out his part of the transaction and the McMurrens wanted to avoid the expense of keeping the cow any longer, and called off the trade, and for the purpose of releasing the McMurrens from the trade and of turning the cow back to the possession of Mr. Curry. All the acts of J. C. McMurren with regard to the cow and in making the trade and in the calling off of the trade and in returning the cow to the Curry pasture were with the full knowledge and consent of Ethel McMurren. The McMurrens, nor either of them, ever had a bill of sale to the cow. Some litigation arose over the transaction in the justice of the peace court. When this litigation commenced or when it ended cannot be definitely determined from the record. The McMurrens were unsuccessful in the litigation and lost the case. Apparently the McMurrens were held to the trade by which they had acquired the animal in question. The record is so vague as to what this litigation was about that we think that the testimony concerning it has no probative value whatever. The McMurrens had never been to look for the cow (except through a telescope), had never requested the defendant or any other member of the Curry family to return the cow to him or his wife, had never sent any person to look for the cow, and had not asked the brand inspector to get her, or made any attempt whatever to get the cow back into their possession. McMurren said that he had been warned to stay out of the Curry pasture, and he did not think it expedient to go there himself. Circumstances were elicited on the hearing from which it could be inferred that ill feeling existed on the part of the McMurrens against appellant. This witness stated that he looked for the cow with a telescope from points of from 100 yards to half a mile away.

On November 6, 1924, the defendant killed a cow and sold the beef to J. C. Robbins, of Tucumcari, N. M., and on December 8, 1924, sold the hide to Bassett Collins, of Tucumcari, and the animal so killed is the subject of the alleged larceny. The hide was identified by Mr. McMurren and others as being the hide of the animal returned to the Curry pasture on September 10, 1924. The brand on the hide was a cross on the right hip. The defendant and a son testified that the McMurrens' cow had been in the Curry pasture, and, in fact, that it was there at the time of the trial. In the testimony it appears that defendant and Doc Curry and other sons of the defendant referred to the Curry pasture as “their” pasture, and Mr. McMurren stated that he did not know whether it was Doc Curry's pasture or W. T. Curry's-that all of the Currys referred to it as “their” pasture. The defendant, W. T. Curry, whose character was not impeached, testified that he supposed that the cow which he killed was his; that he had 22 cows branded the same way as the cow in question; that they were mostly Hereford cattle, bald-faced, red in color; that he had half a dozen nearly alike, and he thought the cow he killed was his own. Two other witnesses, testifying on behalf of the defense, stated that they were cowmen of considerable experience, and that they were on the McMurren place in June or July, and that McMurren showed each of them a cow he got from Doc Curry in a trade, and which was in the McMurren pasture, and made some remark as to her value. The witnesses stated that they had since seen the same cow two or three weeks before the trial (March, 1925), in the Curry pasture.

On the other hand, other witnesses called by the state thought the defendant's witnesses were mistaken in their identification of the cow they saw in the Curry pasture as being the one they had seen at the McMurren premises.

It will thus appear that there was some element of uncertainty concerning the identity of the cow which was killed by the defendant, although this has only an indirect bearing upon our decision.

The appellant assigns ten alleged errors challenging the sufficiency of the evidence to support the verdict, the correctness of certain instructions given by the court, and the correctness of the ruling of the court in refusing instructions tendered by defendant, and presenting the proposition that there is a vital variance between the allegations of the indictment and the proof, in that the proof shows that if any crime was committed by the defendant it was the crime of embezzlement of an animal, and not larceny.

The section of the statute upon which the indictment was predicated enumerates three distinct crimes, namely: (1) Stealing of animals; (2) embezzlement of animals; and (3) knowingly killing or otherwise depriving the owners of animals of their immediate possession. See Territory v. Cortez, 15 N. M. 93, 103 P. 264. In State v. Anaya, 28 N. M. 283, 210 P. 567, we said that an indictment alleging that on a day certain the defendant, having been intrusted with a certain number of sheep of the property of...