State v. Huffman

• Decision Date: 23 January 1888
• Parties: STATE v. HUFFMAN.
• Court: Oregon Supreme Court

16 P. 640

16 Or. 15

STATE v. HUFFMAN.

Supreme Court of Oregon

January 23, 1888

Appeal from circuit court, Umatilla county.

Indictment for larceny. B. Huffman was indicted for larceny, jointly with O.H. Stanley. A trial of the indictment resulted in an acquittal of Stanley, and conviction of Huffman. The latter appeals.

Tustin & Leasure, for appellant.

M.D Clifford, Dist. Atty., and Ramsey & Bingham, for the State.

THAYER J.

This appeal comes here from a judgment of conviction of the appellant for the larceny of a steer, the property of Sam. George, obtained in the circuit court for the county of Umatilla. He was indicted in said court by the grand jury of Umatilla county, for said crime, jointly with one O.H Stanley. A trial was had upon the said indictment, which resulted in the acquittal of Stanley, and a disagreement of the jury as to the guilt of appellant. At a subsequent term of the said court, the appellant was again put upon his trial, was found guilty, and the judgment of conviction entered thereon, from which this appeal is taken. The appellant assigned several grounds of error in his notice of appeal, which have been considered by the court, and will be referred to herein.

The first ground of error is the admission of the testimony of Ed. Olcott as to his finding the brand cut out of the hide of the animal after it had been butchered. The evidence showed that the appellant was working for O.H. Stanley, who was his father-in-law; that Stanley was the owner of quite a number of cattle upon the range, including a white steer very similar to the one alleged to have been stolen that he made arrangements with appellant to go and get his steer, then running with his milch cows, at what was known as "Smith's Place," in Jack's canyon, and deliver it to said Olcott, to whom he had sold it; that, in pursuance thereof, appellant went and got the steer in question, under, as he claimed, a mistake, which claim the evidence seems strongly to corroborate; that he found the steer at or near the place from which he was directed to get him; took him along the public highway, in the day-time, to Olcott's slaughter-pen, and left him there; and went to town, where he found Olcott, and informed him of the fact that Olcott paid him part of the money for the steer, which he paid over to Stanley; that when appellant informed Olcott that he had left the steer at the pen, the latter went down to the pen to see the animal, and locked the gate of the pen; that there was no other animal in the pen. The next day he saw the animal again in the pen, and and on the evening of the third day after the animal was put in the pen he killed and skinned it. After butchering the animal, he noticed the head, and saw that there was a split in the right ear. He then spread the hide out on the ground, and could see the letters "S.G." branded on the right hip. He left the hide spread out on the ground, with the head near it, and went back to his shop. That he went to the pen again the next morning. The witness was thereupon asked by the district attorney, in what condition he found things the next morning. The appellant's counsel objected to this evidence; the court overruled the objection, and an exception was taken to the ruling. The witness in answer to the question, stated "that the beef was hanging up in the shop where he left it the evening before, but the head he did not see, and the hide was thrown together 'like' from where he left it; that he spread it out and saw the brand was cut out of it; that he hauled the beef up to the market, and went back afterwards, and found the head down near the stream, about a hundred yards from where he left it; that there was a piece of the hide cut out, about a foot square. Would judge the animal worth $26.60,--the amount he paid for it." No testimony appears to have been given implicating the appellant with the cutting of the hide as mentioned, nor any circumstance proved indicating that he did it. Whether he did do it or not seems to have been left wholly to inference and conjecture. This presents the first ground of error relied upon by the appellant's counsel.

The next alleged error consisted in the court's permitting the district attorney to interrogate one George W. Hanna, concerning the following matters, upon which he was examined: Hanna was a juror upon the former trial, in which Stanley was acquitted, and the disagreement as to appellant was had. Upon that trial, Stanley testified as a witness, and had since died; and Hanna, having been on that jury, and heard Stanley's testimony, was called by the appellants as a witness to prove what the deceased testified to on said occasion. After the examination of the witness in chief was concluded, which was confined to the proof of Stanley's testimony, the district attorney asked him a number of questions regarding the deliberations of the former jury, among which were the following: "How many men were on that jury? Did the other eleven remember the testimony as you did? Did they agree with you? Is it not a fact that you hung that jury thirty-six hours? How long did you hang it? [ referring to the jury.] How long were you out on that jury? How long did you hold that jury against the eleven? As a matter of fact, did you not go into the sheriff's office and get your overcoat and shoes, and go back there determined to stay?" Here the court said to the witness: "You may state all that you did, and what your recollection is in regard to it," and then said to the district attorney: "Ask him any questions you please to test his memory concerning that case." The examination proceeded in this manner to a considerable length, the attorney for the appellant protesting all the time against it, and, after the testimony upon that point was concluded, moved the court to strike it out, which was refused, and an exception taken to the ruling.

The other grounds of error relate to certain instructions given by the court to the jury, and to the refusal to give instructions asked by the appellant's counsel. The following are the instructions given, and those refused, referred to: "The mere assertion of this defendant, Huffman, or O.H. Stanley, who was indicted with this defendant, Huffman, or the assertions of said Stanley and Brady Huffman made at or near the time of the taking, or since then, that they, or either of them, were the owners of the property named in the indictment, or that the taking of the steer named in the indictment was through mistake, is not sufficient to establish such fact; there must be, or ought to be, some other evidence or circumstance corroborative to esstablish that fact." "It is not necessary that the evidence establish that the animal named in the indictment was taken under claim of right, or color of title, or by mistake, beyond reasonable doubt; but it is sufficient if either one of such conditions be shown by a preponderance of the testimony, or by the weight of the testimony, and this must be shown by the defendant." The appellant's counsel requested the court to give the following instructions: "The fact that the brand upon the hide was mutilated, and the head and ears removed, after the animal was slaughtered by Olcott, is no evidence connecting this defendant with the crime charged, unless there is evidence connecting the defendant with such mutilation of the hide, or the removal of the head and ears." Which instruction the court refused to give to the jury, but in lieu and instead thereof gave the following instruction: "The fact that the brand upon the hide was mutilated, and the head and ears removed, after the animal was slaughtered by Olcott, is a fact and circumstance that you may consider. It is for you to say, from all the facts and circumstances, whether the defendant or Stanley have been connected with or had any connection with the mutilation of the head or hide." During his instructions, the court instructed the jury as follows: "If the jury believe from the evidence that the taking, if any, by the defendant, was an open taking, and that the taking the same was over and along a public road, or in sight of other persons, this is a circumstance that you may consider in determining what the intention of the taker was, or whether there was any larceny intended. But the mere fact that the property was taken openly or in daylight is not conclusive, for it may be that the fact of openly taking certain kinds of property may be used simply as a cloak or trick, or it may be the result of recklessness, emboldened by like successes, or it may be that the very cloak that the law throws around innocent people has been prostituted by the person committing the larceny."

The question arising upon the first alleged error is whether it was competent to show the mutilation of the hide, after the animal was delivered to Olcott and butchered, without some proof being made, or circumstances shown, tending to implicate the appellant with the act. The taking of the animal under the circumstances disclosed by the evidence was not sufficient of itself to constitute larceny. It was necessary to establish the animo furandi, or the law will adjudge the kind of taking referred to only a trespass. Littlejohn v. State, 59 Miss. 273; Stuart v People, 73 Ill. 20. Even where a person knowingly takes and appropriates the property of another, it is not necessarily a larceny; the character of the taking may be such as to rebut any felonious intent. McDaniel v. State, 33 Tex. 419. If it had been...