State v. Erwin

• Decision Date: 02 December 1977
• Docket Number: No. 12167,12167
• Citation: 98 Idaho 736,572 P.2d 170
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Alan ERWIN, aka "Hap" Erwin, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 170

572 P.2d 170

98 Idaho 736

The STATE of Idaho, Plaintiff-Respondent, v. Alan ERWIN, aka "Hap" Erwin, Defendant-Appellant.

No. 12167.

Supreme Court of Idaho.

Dec. 2, 1977.

Robert M. Robson, Boise, for defendant and appellant.

Wayne L. Kidwell, Atty. Gen., P. Mark Thompson, Asst. Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, Alan J. Coffel, Pros. Atty., for Owyhee County, Homedale, for plaintiff and respondent.

BISTLINE, Justice.

The sole question presented on this appeal is whether the evidence as a matter of law, beyond a reasonable doubt, warranted a jury in finding that defendant was possessed of that requisite "felonious intent" which is an essential ingredient of the crime of larceny. We hold the evidence insufficient and reverse the judgment of conviction.

Defendant-appellant, Alan Erwin, was tried before a jury on a charge of grand larceny, under the provisions of I.C. § 18-4604(3). ¹ Erwin, a rancher for all of his life, moved in December of 1973 from Gooding County to Owyhee County where he acquired a 2600 acre ranch. East of this ranch is a stretch of BLM land upon which a neighboring ranching operation, Guthrie's Rancho Idaho, had a grazing permit. On December 9, 1974, Erwin's 34-year-old son Sid drove two truckloads of heifers and calves a total of 136 animals to an auction at Producer's Livestock in Jerome, Idaho. The animals were auctioned on December 10, 1974, and 25 of Erwin's shipment were bought by Don Twito. At the auction three of these calves were observed to carry Rancho Idaho earmarks. Subsequently, an investigation of the earmarked cattle was undertaken by the Owyhee County Sheriff's Office. On January 27, 1975, brand inspectors went to the Twito ranch, shaved the three earmarked calves and found the "S" brand of Rancho Idaho on each of the animals.

The State's case against Erwin was based on the proposition that Erwin must have intended to take the three calves, because they were in his possession notwithstanding that they were earmarked, and the Erwins did not earmark or brand their own calves. The manager and the cow boss of Guthrie's Rancho Idaho testified to their distinctive branding and earmarking procedures. They also testified that, due to the superior quality of Erwin's grazing land, it was impossible to keep the Rancho Idaho cattle from straying and that Erwin frequently returned their strays or called Rancho Idaho hands to collect them. The auctioneer was called to establish the sale of the cattle in question. Four state brand inspectors were then called and testified to the importance of earmarks, the function they serve in helping cowboys on the range separate their herds and the ease with which they can be identified even at a considerable distance.

Finally, Deputy Brand Inspector Joe Bennett testified that on the day of the sale,

" . . . I run onto Mr. Erwin standing by the desk and I asked him what he could tell me about the earmarked calves and his calves and he said that him and Rancho Idaho had got mixed and the cattle had been sorted and everything was all right."

This testimony was corroborated by Kenneth Bartholomew, the district brand inspector on duty in the sales ring, who claimed he asked Bennett: "Joe, what is the earmarked cattle in Hap Erwin's" and was assured by Bennett: "I talked to Hap, they are all right." Erwin, the State maintains pointedly, did not do anything himself to check out these animals once informed of the problem.

Appellant-defendant Erwin's testimony placed this incident in a larger context. When he bought the ranch, Erwin was unaware of the problem of missing fence along his eastern boundary. Consequently, during the entire first year of operation, Rancho Idaho cattle grazing on the BLM land were constantly coming onto Erwin's property because of its water supply and its rich alfalfa. On four separate occasions from April up to and including the day in question, the Erwins separated out their neighbor's cattle that had strayed into their herd and either called Rancho Idaho or themselves transported the strays back. On each occasion, between 25 and 75 cattle were returned to Rancho Idaho. There is no hint of animosity in all this. Erwin testified that it was his own fault for not having noticed the missing fence, that it was impossible for Rancho Idaho to prevent its cattle from coming after Erwin's green alfalfa, and that it was not really costing him any money.

The December 8-9, 1974, sorting out, loading and transporting process i. e., the "taking" and "asportation" is narrated as follows: The Erwins explained that they began by separating the cows from the calves. Next they found the cows which belonged to other ranches those which did not bear their own "Anchor D" and "EX" brands corralled them, and allowed them to nuzzle the calves through the fence in a "mothering up" method of pairing off the wet cows with their own calves. These paired cows and calves were then transported back to Rancho Idaho or to whatever other ranch they might have strayed from. Next, they separated what they presumed were their own remaining calves into three categories: those too young to be separated from their mothers (these are mothered up in the way described above and are then sent out to pasture); those old enough to be weaned (these are kept back by the ranch house); and those which are heavy enough to be marketable. A final check of these cattle is performed during the loading process when the animals are inspected for health and for coloration and breed as a further control in eliminating neighbor's cattle in case a neighbor's calf had strayed from its mother or had not mothered up. In short, the Erwins claim they sort cattle by looking for breed and for pairing behavior, not for earmarks.

The result of this is not perfection when 136 calves are culled out of a herd in excess of 500 head of cattle, more than 10% of which are strays, and when the loading is done after nightfall. The Erwins testified that they have no desire to make extra work for themselves or for the brand inspectors, but that sometimes stray cattle get sent to market. (The inspectors agreed it is a not infrequent occurrence.) Finally, Erwin testified that he did not arrive at the auction lot until after the sale was completed. His conversation with Inspector Bennett took place late that afternoon when Erwin came to pick up his check. According to Erwin, the conversation went as follows:

" . . . he asked me if I had earmarked any of them calves. I said, 'Hell, I don't know, I don't know what goes on all the time.' Well, he said, 'You don't ordinarily earmark them.' And I said 'No, we don't but on occasions we might.' Well, he said, 'I thought maybe the kids were monkeying around because,' he said, 'There is five head of calves that has earmarks on them.' Well, I said, 'Have they got any brand on them?' And I said, 'Joe we have had Rancho calves running, Rancho cows running on us all summer and we sorted those calves as best we could but,' I said, 'I wouldn't guarantee there isn't a Rancho calf on there.' "

Erwin said that he felt no obligation to check this out himself by touring the Producer's Livestock area comprising 10 acres with 300 stalls housing 1,800 cattle and finding the few animals in question. Erwin maintains that he relies on the brand inspectors as his last line of protection against mistakes because he pays them "six bits a head" for the service. At the time of the above conversation, Bennett had made one inspection. As a result of the conversation, he made another. And Inspector Bartholomew had made still another in the sales ring itself. At no time did either inspector discover the "S" brand of Rancho Idaho or object to the sale.

Defendant Erwin argues that the State has not presented any direct evidence establishing a felonious intent at the time of the taking, and that the circumstantial evidence is as easily taken as manifesting an honest mistake as it is toward proving a felonious intent, for which reason the conviction cannot be sustained. We agree. See, State v. Grow, 93 Idaho 588, 593, 468 P.2d 320, 325 (1970), where it was held that "the elements of the crime which the state 'proved' were not sufficient in law to warrant a conviction," and this Court affirmed a trial court's granting of a motion to give an advisory instruction to acquit.

The State, on the other hand, while agreeing that it presented no direct evidence to prove the charge against Erwin, contends that the facts were sufficient to give rise to an inference of a felonious intent, placing reliance on State v. Kazda, 545 P.2d 190 (Utah 1976), and People v. Zaring, 547 P.2d 232 (Colo.1976). The defendant in Zaring was apprehended in the possession of a still-warm recently shot, partially slaughtered, 400 pound calf tied to the tailgate of his pickup. His testimony was to the effect that he had shot the calf to put it out of its misery, believing it to have been hit by a car or attacked by a coyote, and that he was trying to drag it to the nearest ranch house to find the owner; he also admitted that he was but five days from opening a restaurant with facilities to handle meat. The defendant in Kazda was apprehended with two others taking copper telephone wire from poles on an outlying ranch. Kazda defended on the basis that a "Mr. Johnson" had given him a contract to remove the wires, but the "Mr. Johnson" was then identified as being, in fact, one Max Reay, who was one of the other two persons caught in the act. While we find these two cases to be of interest, we do not consider the factual pattern in either to that closely approach the case at bar so as to carry any persuasion.

Larceny is a crime of specific intent. ² The burden of proving the requisite mental state beyond a reasonable doubt belongs to the prosecution. State v. Riggs, 8 Idaho 630, 70 P. 947 (1902). Recent U.S. Supreme Court decisions make it clear that any attempt to shift that burden to ...