State v. Eppers

• Decision Date: 20 October 1931
• Citation: 138 Or. 340,3 P.2d 989
• Parties: STATE v. EPPERS.
• Court: Oregon Supreme Court

3 P.2d 989

138 Or. 340

STATE v. EPPERS.

Supreme Court of Oregon

October 20, 1931

Department 2.

Appeal from Circuit Court, Yamhill County; Arlie G. Walker, Judge.

Willis Eppers was convicted of larceny by stealing live stock, and he appeals.

Affirmed.

This prosecution is predicated upon the alleged violation by the defendant of section 14-319, Or. Code, 1930, relating to larceny by stealing live stock.

The animal charged to have been stolen was a "past-three-year-old" Holstein cow the property of one H. W. Chodrick, that was ranged with other cattle belonging to Chodrick in and about his place in Moore's Valley, Yamhill county, about seven miles west of the town of Yamhill. It is claimed by the prosecution that the cow was stolen from this place.

In the latter part of October, 1928, the owner gathered his cattle together, took from the cows their calves, and forthwith turned the cows back on the range surrounding his premises. About two weeks later, according to the testimony adduced by the state, this Holstein cow was in the possession of the defendant in the vicinity of Redmond, Deschutes county, a distance of about 240 miles from Moore's Valley. It appears that, though Chodrick missed his cow, he made no complaint to the sheriff until the spring following the disappearance. It then developed that W. M. McQueen, deputy sheriff of Yamhill county, had seen near Redmond a Holstein cow that answered to the description of the Chodrick cow, and which cow was reported to have been brought from the Willamette Valley. Thereupon the sheriff, accompanied by Chodrick and his son, went to the ranch of one James Brown near Redmond and viewed the cow for the purpose of determining whether or not it was the cow that had been taken from Chodrick, and both the father and the son claimed to have identified the cow as belonging to them. Brown claimed to have bought the cow from this defendant. A search was instituted, but the officials were unable to locate the defendant. However, a complaint was made to the grand jury which resulted in the indictment. A bench warrant was issued and the defendant, when apprehended in the state of Colorado where he was living under the name of Bushman, was arrested arraigned, tried and convicted, and sentenced to a term in the penitentiary of not to exceed three years. From the judgment based upon the verdict of the jury, the defendant appeals and assigns numerous errors.

B. A Kliks, of McMinnville (Alvin Kurtz, of McMinnville on the brief), for appellant.

Earl A Nott, Dist. Atty., of McMinnville, for the State.

BROWN, J. (after stating the facts as above).

The first objection disclosed by the bill of exceptions relates to the following testimony given by the owner of the cow:

"Q. What was done with the cow? A. Well, the cow was left on the ranch.

"Q. State whether or not you got any settlement for her. A. I did.

"Mr. Kliks: Just a minute. That is irrelevant and immaterial.

"The Court: Objection will be overruled.

"A. I got a settlement for her.

"Q. From whom? A. From Mr. Brown."

This was a collateral inquiry and had no place here, and the ruling was error. However, the matter of the settlement between Brown, the purchaser of the alleged stolen cow, and Chodrick, the owner thereof, was fully developed and is explained in detail in the evidence adduced by the defendant. See Defendant's Exhibits 13 and 14. Hence this assignment is without merit.

At page 3 of the bill of exceptions, we find that the district attorney, in his opening statement, said that he expected to prove that the defendant had been engaged in the business of trading and buying cattle and horses, and was traveling over the country with a truck which he used in that line of business. This statement is justified by the record.

The defendant objected to the testimony of Sheriff Manning of Yamhill county, who testified that he had been acquainted with the defendant for four or five years; that the defendant was a stock dealer, and usually traveled in trucks. He further testified that he arrested the defendant in Brighton, Colo. All of this testimony was competent.

Exception 3-A relates to the testimony of Donald Chodrick, son of the owner of the cow, and the person who had handled and fed the cow when a calf, and had marked her. He testified that the cow found in the Brown pasture was his father's cow.

Exception 4 involves the ruling of the court on motion for a directed verdict of acquittal of the defendant. As grounds for the motion, the defendant states: "The proof is that Mr. Chodrick had possession of a certain cow with a 'crop' off of each ear, aged approximately between three and four years, age not certain, which cow disappeared 'in the latter part of October,' 1928, by Mr. Chodrick turning the cow out on the range so that the cow might range at will from the farm of Chodrick seven miles west of Yamhill, and that the cow could stray to Tillamook or Washington County; that such cow was not missed until 'along in November'; that Chodrick represented that the cow was lost to Mr. McQueen, deputy sheriff of Yamhill County, Oregon; that the cow was found near Terrabonne, in Eastern Oregon, on a ranch belonging to James Brown; that James Brown testified that he purchased the cow from the defendant; that the cow was worth $100.00; that there was no evidence of how the cow reached Eastern Oregon from the Chodrick farm, or from where she was turned out on the open range. Chodrick, his son, and the deputy sheriff claimed the cow on the Brown farm was the same cow that Chodrick had in Yamhill County, Oregon."

In the motion, which embraces fifteen paragraphs, it is stated, in part:

"(1) That there is no connection with the defendant of the alleged taking of the cow from Yamhill County. ***

"(4) That there was no proof of any taking of the cow by any one.

"(5) That there was no showing of the stealing of the cow, or of committing larceny.

"(6) That the corpus delicti was not proven. ***

"(9) That at best there might be a suspicion of the defendant having in his possession stolen goods, but nothing further.

"(10) That the State must show that the cow was stolen in Yamhill County, Oregon, and that it failed to show this. ***

"(15) That there is no evidence of any larceny; that there was no showing that the cow was held under suspicious circumstances, or any attempt to cover up the possession by Eppers; that it is not a matter of recent possession by Eppers, that, generally, the corpus delicti was not proven by the State."

After a denial of the motion to acquit the defendant, the prosecution moved to reopen the case in order that the state might adduce additional evidence of venue of the case. The defendant's objection was overruled by the court. Under the circumstances disclosed by the record, it was not error for the court to reopen the case for the purpose stated. The discretion vested in the court by law was not abused. Furthermore, it is the judgment of the writer that there was before the jury sufficient evidence of the venue of the alleged crime to submit the case. The court judicially knew the boundaries of Yamhill county. It judicially knew the distance of the boundary of that county from the town of Yamhill. The testimony showed that the cow in question ranged in and about the farm of the owner, which was located about seven miles west of the town of Yamhill.

Circumstantial evidence is sufficient to establish venue. Underhill's Criminal Evidence (3d Ed.) § 467.

An Oregon case where the question of venue was at issue is State v. Casey, 108 Or. 386, 213 P. 771, 777, 217 P. 632. In that cause, which was a case of homicide, a question was raised as to the venue of the offense, which was committed at a place known as Mock's Bottom. According to the record, there were existing circumstances, and places named in the testimony, from which the jury could infer that Mock's Bottom was in Multnomah county, Or. In deciding the case, we said:

"The court judicially knows the boundaries of Multnomah county. It has been established by a public law. ***

"For the purpose of determining venue, court will take judicial notice of well-known geographical features, the division of states into counties, cities, and towns, and the boundary lines of such counties, cities, and towns within the state, when fixed by public law. 13 Ency. of Ev. 930; Section 729, Or. L."

See, also, Or. Code 1930, § 13-306, relating to venue of crimes when committed on or near county boundary.

In his motion the defendant asserts time and again that the possession of stolen goods would be insufficient to convict any person of the crime of larceny. If the defendant means to say that the possession of stolen goods alone is insufficient to convict one of the crime of larceny of such goods, we agree.

With relation to the presumption arising from the possession of stolen goods, Wharton, in his work on Criminal Evidence (9th Ed.), at section 758, says: "When we take up the presumption arising from the possession of stolen goods, we have again to deplore the looseness of phraseology which assigns one term, 'presumption,' to processes so very different as fictions, presumptions of law, and inferences. *** Taking up, then, the point immediately before us, we may say that a court may properly tell the jury that the possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred. But the possession must be personal; must be recent; must be unexplained; and must involve a distinct and conscious assertion of property by the defendant. If the explanation involves a falsely disputed identity or other fabricated evidence, the inference increases in strength."

We note, also, the early case of ...