State v. George Mason
| Decision Date | 04 February 1925 |
| Citation | 127 A. 651,98 Vt. 363 |
| Parties | STATE v. GEORGE MASON |
| Court | Vermont Supreme Court |
November Term, 1924.
INFORMATION for larceny. Plea, not guilty. Trial by jury at the December Term, 1923, Lamoille County, Willcox, J presiding. Verdict of guilty, and judgment on verdict. The respondent excepted. The opinion states the case. Reversed and remanded.
Judgment reversed and cause remanded.
Roger W. Hulburd and W. W. Reirden for the respondent.
Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.
The respondent was prosecuted and convicted before the county court on an information charging in the usual form the larceny of a certain cow, the property of one Frank Kendall. It appeared in evidence that a short time before the day in question the respondent. who lived in the town of Eden, had purchased some cows of C. H. A. Stafford and Sons of Morrisville. Some of these cows were on the Stafford farm in Elmore. By appointment the respondent went to the farm on October 5, 1922, to get his cows. The Staffords failed to meet him, but by telephone instructed their man in charge of the farm to permit the respondent to take his cows. Thereupon the respondent selected from the herd of some thirty or forty cows such of them as he claimed to have purchased and drove them to his home in Eden. There was a conflict in the evidence respecting the number of cows taken from the Stafford farm. The State's evidence tended to show that the respondent left the Stafford barn with only eight cows, while the respondent's evidence tended to show there were nine. It was undisputed that the respondent drove home nine cows on that occasion. The road taken by the respondent on his way home passed through the farm of Frank Kendall, which adjoins the Stafford farm. The State's evidence tended to show that Kendall's cows were pastured that day in a field beside this road; that the cows were all there at noon of the day in question, which was some five hours before the respondent passed; that when the cows were driven up for the night shortly after the respondent passed, the cow in question was missing; that the field was securely enclosed and a certain barway leading from the field to the highway nailed up when last seen earlier in the day; that after the cow was missed it was discovered that this barway had been tampered with; that Kendall visited the respondent's premises in Eden shortly after the cow was lost looking for her, but did not find her; that early in September, 1923, as the result of a telephone message received from one of the Staffords, he went there again and found the cow in the respondent's possession, running with other cows in his pasture; that the respondent denied having taken the cow from Kendall's field and claimed that she was one of the number that he purchased of the Staffords; that the cow was not one of the cows so purchased, was not among the cows driven away from the Stafford barn, and had never been with the Stafford cows.
The principal question argued arises on exceptions to the charge, to the refusal to charge as requested, and to the overruling of the respondent's motion to set the verdict aside. While considering the case the jury returned for further instructions and submitted the following question in writing: "If the respondent Mason drove home the Kendall cow from the Staffords' barn, knowing that it was not a cow that he purchased of the Staffords and kept it for eleven months, or thereabout, could he be convicted of grand larceny?" The court answered in the affirmative with the qualification, "provided you believe from the evidence in the case beyond a reasonable doubt that the taking and driving away of the cow was with felonious intent and purpose permanently to deprive the owner, whoever he may have been, of his ownership in the cow taken; and provided further that you find beyond a reasonable doubt from all the evidence that the value of the cow so taken is more than $ 25." The respondent excepted to this instruction, insisting that a negative answer should have been given, on the ground that it was contrary to the theory on which the case had been tried and submitted and further because there was no evidence tending to show that the respondent knew that any cow taken by him from the Stafford barn belonged to Kendall and so no evidence of an intention to deprive Kendall of his property.
The theory of the prosecution was, and its evidence all tended to show, that the respondent took the cow from the Kendall field. There was conflicting evidence as to...
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