State v. Hill

• Decision Date: 01 July 1901
• Parties: STATE v. HILL.
• Court: Oregon Supreme Court

65 P. 518

39 Or. 90

STATE v. HILL.

Supreme Court of Oregon

July 1, 1901

Appeal from circuit court, Union county; Robert Eakin, Judge.

James Hill was convicted of the larceny of a mare, and he appeals. Affirmed.

L.A Esteb, for appellant.

Saml. White, Dist. Atty., for the State.

MOORE J.

The defendant, James Hill, was tried upon an information charging him with the larceny of a mare, the property of one D.H Shaffer, alleged to have been committed in Union county, Or August 2, 1899; and, having been convicted thereof, he was sentenced to imprisonment in the penitentiary for the term of two years, from which judgment he appeals.

Exceptions having been reserved, it is contended that the court erred in refusing to instruct the jury as requested by the defendant as follows: "(2) If you find from the evidence that the defendant had a claim to the mare, honestly entertained, even though he may have got her from a thief, he had a right to keep her until the question of ownership was settled; and, if his claim of ownership was made honestly and in good faith, it was not larceny, and you should acquit. (3) The taking of property without the felonious intent to convert it to the taker's own use is only a trespass, and openly taking is evidence of the absence of such intent. The criminal intent is what distinguishes larceny from trespass and, if you find that the defendant did not attempt to take the animal clandestinely or attempt to conceal her, you may consider this fact to negative the question of larcenous intent, and your verdict should be not guilty." To render the instructions so requested intelligible, it is deemed necessary to state the substance of the testimony upon the subject to which they relate. The transcript shows that about March 10, 1899, D.H. Shaffer was the owner of a black mare, which he turned out on the range to pasture, and did not again see until about the 1st of October of that year, when he found her in the defendant's possession, about four miles from his place; that, upon the defendant's refusal to deliver the mare on demand, Shaffer instituted an action for her recovery, and secured the possession thereof. The defendant, as a witness in his own behalf, explaining his possession, testified, in effect, that about August 21, 1899, he, in presence of his brothers, George and Leonard, having met a stranger in the public road riding the mare in question, he traded with him, giving him therefor a gray mare; that after the exchange was effected the stranger rode with them to their father's farm, where they parted company; and that said stranger was seen by their father as he passed his place riding the mare which he received from the witness. The defendant's testimony is corroborated by that of his brothers, George and Leonard, and by that of his father in respect to seeing the stranger pass his place riding the gray mare. Considering these requests in their order, the first, which is numbered two, seems to be predicated upon the assumption that the action being tried was to recover the possession of the mare, or at least that the defendant was entitled to retain such possession until the right thereto could be determined in a proper action. The transcript shows that, prior to the defendant's trial upon the information for the larceny of the mare, Shaffer had secured the possession in an action therefor. If the court had been requested to instruct the jury that if they should find the defendant traded for the mare, even if he knew that the person with whom he traded had stolen her, he could not be convicted under an information charging him with the crime of larceny, and they must acquit him, it would have been error not to give it; for such an instruction could have been predicated upon the defendant's theory of the facts of the case, and was not included in the court's general charge, to which no exception was taken. Neither honesty nor good faith was required of the defendant, as elements of his possession of the mare, if he did not take her, to constitute a defense, when charged with the larceny thereof. People v. Ward, 105 Cal. 652, 39 P. 33; Faulkner v. State, 15 Tex.App. 115; Clayton v. State, 15 Tex.App. 348; Phillips v. State, 19 Tex.App. 158. Unless the defendant took the mare, or participated in her taking, which is one of the necessary elements of larceny, he could not be legally convicted thereof. Curlin v. State (Tex.App.) 5 S.W. 186. If he had traded for the mare, knowing or having good reason to believe that she had been stolen, he could have been punished upon conviction of that offense, if properly charged. Hill's Ann.Laws Or. § 1774; State v. Pomeroy, 30 Or. 16, 46 P. 797; State v. Hanna, 35 Or. 195, 57 P. 629. The instruction so requested being faulty in that particular specified, no error was committed in refusing to give it. There was no testimony tending to show that a question of trespass was involved, and hence no necessity existed to distinguish between a tort of that character and the crime of larceny. If the court had been requested to charge that if the jury should find that the defendant made no attempt to conceal the mare, but publicly rode or drove her in the immediate vicinity in which Shaffer lived, so that he might have been able to see and recognize her, they might consider such fact as a circumstance tending to negative a taking by the defendant, it might have been proper to give it. Jones v. State, 64 Am.Dec. 175. The second instruction contains so many hypothetical elements not involved in the testimony introduced at the trial, that no error was committed in refusing to give it.

The defendant filed a motion for a new trial, based upon his affidavit to the effect that prior to his trial he made every effort within his power to discover the name and residence of the person from whom he received the mare with the larceny of which he was charged; that since said trial he had received information through James Allen and Robert Wright, who live in Wallowa county, Or., but whose affidavits he was unable to secure on account of their absence...