State v. Gillies

• Decision Date: 09 April 1912
• Docket Number: 2304
• Court: Utah Supreme Court
• Parties: STATE v. GILLIES et al

123 P. 93

40 Utah 541

STATE v. GILLIES et al

No. 2304

Supreme Court of Utah

April 9, 1912

APPEAL from District Court, Fifth District; Hon. Johsua Greenwood Judge.

Dudley Gillies and Stanley Puffer were jointly convicted of the larceny of a cow. Both appeal.

AFFIRMED.

J. W N. Whitecotton for appellants.

A. R Barnes, Attorney-General, and E. V. Higgins and George C. Buckle, Assistant Attorneys-General, for the State.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The defendants were jointly informed against and jointly tried for the larceny of a cow, the property of one Murdock. Both were convicted, and both appeal. The questions for review relate to the admission of evidence and to the charge.

Both defendants resided in Beaver County, where the alleged crime was committed. For some time prior to the alleged offense, Gillies was engaged in buying and shipping cattle from Milford and the ranges nearby. He also had a few head of cattle of his own on the range, fifteen or twenty. At the time of the alleged offense, Puffer was, and for about six months prior thereto had been, employed by Gillies to assist in gathering and caring for cattle, and to some extent in buying cattle. Gillies claimed that he had purchased, or had the right to purchase and take, cattle on the range belonging to his father and to a cattle company in which his father was interested. On the 21st of February, Gillies arranged for and ordered two cars for the shipment of cattle from Milford to Kansas City, Mo. On the 22d, he and Puffer went on the range nine or ten miles from Milford and gathered about seventy head of stock cattle, two carloads, having about a half dozen different brands, and belonging to that many different owners. None of the cattle belonged to Gillies or Puffer. About forty head belonged to Gillies' father and the cattle company, and about twenty-nine head belonged to others, and bore their brands. The cattle were driven part of the way from the range to Milford by both defendants. When within four or five miles of Milford, Gillies rode ahead to procure feed. Puffer followed with the cattle, arriving at the stockyards at Milford after dark. He was unable to put them in the cattle yard or pen, and so drove and placed them in the sheep yard. The next day the cattle were placed in the cattle yard. There they were kept until the night of the 24th, when they were loaded on cars and billed to Kansas City. Puffer intended to accompany the shipment as caretaker, and Gillies to go on a passenger train. The cars were not picked up that night, and were still at Milford the next morning, the 25th. That morning, at about 7:30 o'clock Murdock, the complaining witness, inspected the cattle on the cars, and there found a cow belonging to him, the subject of the larceny, and three or four head of cattle belonging to his son. Shortly thereafter, he met Gillies at the station, and had a conversation with him in Puffer's absence, and while the cattle were yet on the cars. Murdock, over Puffer's special objection, on the ground of hearsay and no showing that Gillies was authorized to make any binding statement or admission as against Puffer, was permitted to testify as to that conversation. The conversation was as follows: Gillies said to Murdock: "I understand you claim some of the cattle on the cars. Murdock: Yes, sir, Gillies: What are you going to do about it? Murdock: I am going to have them cut out. Gillies: Aren't you mistaken about having cattle there? Murdock: No, sir; I am not mistaken. I know my cattle when I see them. Gillies: Well, I haven't been with the cattle. Stanley (Puffer) drove the cattle over. I have not been with them. I have not seen them. If you have any cattle, I will have them unloaded, and we will cut them out. Murdock: That is what I want. Gillies: There may be a few in there. . . . I believe there is eleven head in there that don't belong to me."

Several hours thereafter, and after Murdock had filed a complaint in the justice court at Milford, charging both Gillies and Puffer with the larceny of the cow, and after the cattle had been unloaded and placed in the cattle yard, Murdock had another conversation with Gillies in Puffer's absence. The testimony of this conversation was also received over the special objection of Puffer. This conversation, as testified to by Murdock, was as follows:

"Gillies came to me in front of the Atkins' Hotel (at Milford), and wanted to know if there could be something done. He said that he was willing to take the cattle and put them back on the range, or do anything to make things right; and I told him: 'Dudley' (Gillies), I says, 'this thing is in the hands of the law now, and I don't want to do anything but the right thing.' I says: 'I cannot consent to your taking the cattle back, or doing anything else.' 'Well,' he says, 'if that is the case, it will have to go at that.'"

Testimony of other conversations had with Gillies in Puffer's absence, and after the complaint had been filed and the cattle had been unloaded, was also received over Puffer's objection; but nothing was said in them implicating or derogatory to his conduct.

The cattle, after they had been unloaded and placed in the yard, were separated. Different owners then were present and identified cattle, about twenty-nine head, taken by the defendants from the range which did not belong to Gillies or his father or the cattle company.

The defendants claimed that Murdock's cow got with the herd by mistake and without their knowledge in gathering or driving the cattle from the range, or that she was in or about the corral when the cattle were driven in the yard, and was, without their knowledge and by mistake, loaded on the cars.

It is contended that the court erred in receiving the testimony of the conversations had in Puffer's absence. The objection in the court below was separate, and was made on behalf of Puffer alone. The state seeks to defend the ruling, and contends that the evidence was admissible as against both defendants, on the theory of a conspiracy or combination between the defendants to commit larceny, and that the statements made by Gillies in the conversations were made in furtherance or in pursuance of such unlawful act or acts, and before the consummation by them. That may be true as to the first conversation; but it cannot be true as to the subsequent conversation; but it cannot be true as to the subsequent conversations and those had after the cattle had been unloaded and the complaint filed. It may be said that the first was res...