State v. Elmore, 9183
Decision Date | 16 August 1952 |
Docket Number | No. 9183,9183 |
Citation | 247 P.2d 488,126 Mont. 232 |
Parties | STATE v. ELMORE. |
Court | Montana Supreme Court |
F. F. Haynes, Forsyth, Raymond Shelden, Ekalaka, for appellant. Raymond Shelden argued the case orally.
Arnold H. Olsen, Atty. Gen., Thomas F. Joyce, Asst. Atty. Gen., Roy W. Holmes, County Atty., Ekalaka, for respondent. Thomas F. Joyce and Roy W. Holmes argued the case orally.
The defendant, Henry Elmore, was convicted of the crime of grand larceny, alleged to have been committed by him in Carter county by feloniously stealing, taking, carrying and leading away one red steer, branded RM on the left ribs, the property of Ray Martin. Defendant appeals from the judgment of conviction and order denying his motion for a new trial.
It is contended by defendant that the evidence is insufficient to justify the verdict; that the verdict is contrary to the evidence; that the verdict is contrary to law; that the evidence is insufficient to support the judgment; that the court erred in admitting in evidence over defendant's objection, state's exhibit 2, being a steer hide branded RM on left ribs; that the court erred in giving, over defendant's objection, instruction No. 13 and that the court erred in denying defendant's motion for a new trial.
The record discloses that the recorder of marks and brands for the state of Montana on July 7, 1948, issued to Ray Martin the brand RM for cattle left ribs. The cattle, including the Brahma or Brahma-cross, bearing this brand are all owned by the Sleeper Martin Cattle Company. These cattle were run and ranged on the Trail Creek Cattle Company's lands, situated approximately 45 miles northwest of Ekalaka in both Carter and Custer counties.
State's witness Doris Willson testified that she was in Ekalaka June 19, 1951; that at between 12:30 and a quarter of one a.m. on the 20th day of June, her sister Nancy Holly drove her to her ranch home located some 21 miles south and west of Ekalaka in Carter county in the latter's Pontiac club coupe. At approximately 10 miles from Ekalaka at the foot of Stoltenberg hill a green Studebaker pickup truck, driven by defendant passed them; at that time they were traveling at about 20 miles per hour and defendant's speed was 25 to 30 miles; that they followed defendant for a mile or so at a speed of 60 to 65 miles per hour; that they kept within 70 to 75 feet of the truck for a mile or so; that they observed in the box of the pickup a red beef, a Brahma or Brahma-cross.
She testified there was a fence post on each side of the beef and a tarp that had blown up or off the beef; that she knew it was the carcass of that type of animal; that the lights of their car were on the truck box; that they saw no white on the beef; that it had the characteristics of a Brahmacross; that such breed have short, slick hair. The testimony of state's witness Nancy Holly was in substance the same as her sister's; that the beef in the truck box had the characteristics of the Brahma breed of cattle and both were positive.
The testimony of Doris Willson and Nancy Holly is the only evidence of the asportation of a beef carcass by the defendant.
Sheriff Peabody and stock inspector Henry Bason went to defendant's ranch June 21, 1951, where they found a right hind quarter of beef and defendant's wife engaged in canning meat. Thereupon the sheriff and Beason searched the premises for a hide. The defendant asserted that the beef was his but refused to exhibit the hide, stating that he had butchered the beef out on the Gumbo which was out on the C & B grazing unit of Taylor grazing land.
The sheriff then took into his possession the quarter of beef, most of the canned meat as well as the bones, heart and liver. On that same day Beason filed a complaint in the justice court charging defendant with refusing to exhibit the hide of slaughtered beef and upon the warrant therein issued the sheriff arrested the defendant and on June 25th defendant appeared in said justice court and admitted that he had refused to exhibit the hide for his beef. Thereupon the justice court found defendant guilty and assessed a fine of $250 which defendant paid. The sheriff returned to defendant the canned meat and the quarter of beef on June 25, 1951.
On June 27, 1951, defendant exhibited to the sheriff a hide and a bill of sale whereupon the sheriff tagged the hide, took up the bill of sale, and delivered to defendant a beef inspection certificate therein describing the hide as green and designating the sex of the animal from which it was taken as a heifer.
Eight year old Jerry Hawkins, a witness for the state, testified that on June 21st while rounding up cattle he rode up a draw on the south side whereof there is a gate; that at that time he was a man on a sorrel horse ride up out of the draw and that the man had something on behind his horse. The county attorney stated that the record might show that the object was about two and a half feet by seventeen inches in diameter. The witness also testified that he asked the man where he was going and was told he was going to look at his wheat field; that the wheat field was south of the gate; that when the man was shutting the gate his horse was turned north and that the man got on his horse and it was turned north and that the witness saw him no more. He identified the defendant in court as the man he had seen.
About a quarter of a mile north of the aforesaid gate, on land owned by Odis Hawkins, the father of the witness, there were certain wells, same being located about three miles northwest of defendant's ranch.
On June 29, 1951, the sheriff found a beef hide in one of said wells on the Odis Hawkins place. The hide was a green hide which had begun to sour and on which the hair had started to slip. The sheriff testified that the hide bore an RM brand on the left ribs; he thought it had been recently butchered.
Nat Gunnar, witness for the state testified that he was the foreman of the Trail Creek Cattle Company and the Sleeper Martin Cattle Company; that the hide bore the brand RM on left ribs and that the hide was from a Brahma male; that it would be impossible for him to say whether the hide was from a bull or a steer. The hide had been placed in formaldehyde. At the time of the trial the hide was badly shrunken and much of the hair had been lost off of it.
In regard to the quarter of beef the sheriff had taken from defendant and returned to defendant before he found the hide the sheriff testified:
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