State v. Hickenbottom

• Decision Date: 25 February 1947
• Docket Number: 2342
• Citation: 63 Wyo. 41,178 P.2d 119
• Parties: THE STATE OF WYOMING, Plaintiff and Respondent, v. STEPHEN A. HICKENBOTTOM, Defendant and Appellant
• Court: Wyoming Supreme Court

178 P.2d 119

63 Wyo. 41

THE STATE OF WYOMING, Plaintiff and Respondent, v. STEPHEN A. HICKENBOTTOM, Defendant and Appellant

No. 2342

Supreme Court of Wyoming

February 25, 1947

APPEAL from District Court, Crook County; HARRY P. ILSLEY, Judge.

Stephen A. Hickenbottom was convicted of unlawfully branding and altering and defacing the brand of certain sheep, with intent to steal them, and he appeals.

Reversed and new trial granted.

Reversed.

For the plaintiff and respondent there was a brief by Louis J O'Marr, Attorney General, Hal E. Morris, Deputy Attorney General, and Frank M. Gallivan, Assistant Attorney General all of Cheyenne, Wyoming, and oral argument by Hal E. Morris, Deputy Attorney General.

POINTS OF COUNSEL FOR APPELLANT

If one in good faith takes the property of another believing it to be legally his own, or that he has the legal right to its possession, he is not guilty of larceny although his claim is based on a misconception of the law or his right under it. For although ignorance of law and honest intention cannot shield a man from civil liability for the trespass committed by him, yet they do protect him from criminal liability by divesting the act of the felonious intent, without which it cannot be a crime. Linde v. State, 61 Okla.Crim. 136, 66 P. 2d. 527.

Where there was some evidence to support accused's claim that he took the property in the honest belief that he was the owner of it, the court should give an appropriate instruction covering this defense. 36 C. J. 931, Par. 549.

A conviction and judgment on one of several counts, with no verdict on the others, is an acquittal as to the other counts, especially where the jury is given separate forms of verdicts covering each count, and at least where accused is charged with distinct offenses in the several counts; but where the separate counts charge the same crime, a verdict of guilty on one count is not an acquittal on the others. 23 C. J. S. 1090-1091.

An attempt to commit larceny is a crime at common law, and in most jurisdictions has been made such by statute. The essentials of the crime are: (1) An intent to commit larceny. (2) The doing of some overt act or acts which would, in the usual and natural course of events, if unhindered by extraneous causes, result in the commission of a larceny. (3) A failure to consummate the larceny. This third element is as important as either of the others, for if the attempt is successful, the crime of larceny is complete, and there can be no conviction of the attempt to commit it. 36 C. J. 807-808.

For defendant and appellant there was a brief and oral argument by R. G. Diefenderfer of Sheridan, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

It is too well settled to require the citation of authorities that instruction, to the giving of which no exceptions are taken at the time, cannot be considered by this court on error. Long v. State, 15 Wyo. 262; State v. George, 32 Wyo. 223, 231 P. 683; 23 C. J. 1000.

The rule is well settled that it is incumbent upon the complaining party to point out with definiteness and particularity the error of which he complains, so that the trial court may pass upon the exact question which may thereafter be presented for review. McFetridge v. State, 32 Wyo. 185, 231 P. 455; Dickinson v. State, 18 Wyo. 440, 111 P. 857.

This court has repeatedly held that under Section 33-508, Wyoming Revised Statutes 1931, defects in an information are waived, by not raising them at the appropriate time and by a plea of not guilty. State v. Kusel, 29 Wyo. 287, 213 P. 367; State v. Aragon, 41 Wyo. 308, 285 P. 803; State v. White, 41 Wyo. 256, 284 P. 764.

If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his rights under it, for although ignorance of law and honest intentions cannot shield a man from civil liability for a trespass committed by him, yet they do protect him from criminal liability, by divesting the act of the felonious intent without which it cannot be a crime. It is necessary, however, in all cases that the claim of right be a bona fide one, and not a mere cover for a felonious taking, and must be something more than a vague impression; it must amount to an honest conviction. 36 C. J. 764.

RINER, Chief Justice. KIMBALL, J., and BLUME, J., concur.

OPINION

RINER, Chief Justice.

Stephen A. Hickenbottom, hereinafter usually referred to as either the defendant or appellant was convicted in the District Court of Crook County of unlawfully and feloniously branding, altering and defacing the brand of ten head of sheep, five ewes and five lambs, the ewes being stated to be of the value of eight dollars and the lambs of four dollars each respectively, owned by one Peter Munk, with intent to steal the animals, and the appellant bring the record and judgment here by direct appeal for review by this court.

The information filed by the County and Prosecuting Attorney of Crook County against the defendant contained two counts, the first one charging him with the larceny of the sheep aforesaid and the second count being set forth in this language:

"That on the 7th day of July, A. D. 1945 at and in the County of Crook in the State of Wyoming, the said Stephen A. Hickenbottom, did then and there unlawfully and feloniously brand, and alter and deface the brand of, ten head of sheep, of the personal property of the said Peter Munk, consisting of five ewes and five lambs, the said ewes being then and there of the value of Eight Dollars each, and the said lambs being then and there of the value of Four Dollars each, within intent thereby to steal the aforesaid sheep and to deprive the owner, the said Peter Munk thereof".

With reference to the first count of the information, though the issues thereon were submitted to them by instructions and separate forms of verdict, the jury returned no verdict whatever relative to that particular charge. Both the Attorney General and counsel for appellant agree that this constituted an acquittal of the defendant on that charge. In that conclusion we also concur, 23 C. J. S. 1090, 1091 § 1403 stating upon the authority of cases from the appellate courts of some eighteen separate jurisdictions of the nation that:

"A conviction and judgment on one of several counts, with no verdict on the others, is an acquittal as to the other counts, especially where the jury is given separate forms of verdicts covering each count, and at least where accused is charged with distinct offenses in the several counts;"

It will be unnecessary to consider any matters relative to that phase of the prosecution except as hereinafter indicated.

The facts disclosed by the record which are pertinent, material to be recited and considered on this appeal are substantially these:

Appellant owns and manages a ranch some three miles southwest of the town of Moorcroft, Wyoming where he has been engaged in the live stock business since 1913. He has run about four to five hundred head of sheep during each of the last four years preceding the middle of October, 1945 but he has been in the sheep raising business itself since about 1934. On the fifteenth day of June, 1945 he had 479 head of sheep. However, he still runs some cattle. His ranch adjoins on the north, the ranch of one Mrs. Mary Butler who is also engaged in the business of running sheep. The residence buildings on these two ranches are less than a mile apart and the line fence between them is not far from either.

About July 1, 1945 a crew of Mexicans began sheep shearing operations at the Butler ranch for the convenience not only of Mrs. Butler but of the neighbors who owned sheep. On the day last mentioned, the Butler sheep were shorn. The following day a small flock of sheep, some forty-five or fifty in number, belonging to one Peter Munk who was in the employ of Mrs. Butler as a sheep herder, were processed. Thereafter, a much larger band of sheep, about 426 in number, and owned by Charles Slattery, were shorn by the crew aforesaid and about noon of the same day, Mr. Hickenbottom arrived at the Butler ranch with his sheep, 404 in number. These animals were then sheared and about four o'clock that afternoon, he started back to his home ranch with them.

It appears that a few sheep, six ewes and six lambs marked with a black paint "M" were taken from the Munk flock and placed by themselves in a small pen at the Butler ranch immediately after they were shorn. This black paint mark was put on by means of a wire bent in the form of a letter "M" dipped in black paint and then pressed against the animals in two places, viz. their hips and necks, although one of the witnesses noticed the marks on their sides. Munk testified that this mark was his "brand" and it seems to be so referred to in the record generally.

After the Hickenbottom herd started homeward and were out of sight but their bleating could still be heard, Mrs. Butler in the presence of Mrs. Slattery released the six ewes and lambs heretofore mentioned from the small pen in which they had been previously placed as described above, with the consequence that these animals immediately ran away from the two women despite their efforts to prevent that action and these sheep were last seen moving in a northerly direction toward the Hickenbottom ranch. Their value seems to have been proven to be somewhere around ten or twelve dollars for a ewe and a lamb together.

After Hickenbottom's sheep had been shorn he found, as he testified, that out of the 479 head he owned, only 404 had been sheared according to actual count, hence he naturally inferred that there were some others...