State v. Hurst

Citation209 P. 724,36 Idaho 156
PartiesSTATE, Respondent, v. LEONARD HURST, Appellant
Decision Date17 October 1922
CourtUnited States State Supreme Court of Idaho

CRIMINAL LAW-EVIDENCE-SUFFICIENCY OF TO SUPPORT VERDICT-CIRCUMSTANTIAL EVIDENCE INSUFFICIENT WHERE RECONCILABLE WITH DEFENDANT'S INNOCENCE.

1. Evidence examined and held not sufficient to support a conviction for grand larceny.

2. In order to sustain a conviction based upon circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and if the evidence can be reconciled either with the theory of innocence or of guilt, the law requires that the theory of innocence be adopted.

APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Robert M. Terrell, Judge.

Appellant was convicted of the crime of grand larceny. Judgment of conviction. Reversed and the cause remanded.

Reversed and remanded, with instructions.

P. J Evans, for Appellant, cites no authorities.

Roy L Black, Attorney General, and Jas. L. Boone, Assistant, for Respondent.

Where there is a conflict in the evidence and there is sufficient competent evidence to sustain the verdict, such verdict will not be disturbed. (State v. Silva, 21 Idaho 247, 120 P. 835; State v. Downing, 23 Idaho 540, 130 P. 461; State v. Mox Mox, 28 Idaho 176, 152 P. 802; State v. White, 33 Idaho 697, 197 P. 824; State v. Colvard, 33 Idaho 702, 197 P. 826; State v Neidermark, 35 Idaho 703, 208 P. 232.)

BUDGE, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was charged with the crime of grand larceny, for the alleged stealing of a cow, the property of one Silas Ricks, on November 4, 1917. From a judgment of conviction and sentence to serve a term in the penitentiary for not less than one or more than fourteen years, this appeal is taken.

Appellant makes three assignments of error, but we find it necessary to discuss but one, viz., that the evidence is not sufficient to support the verdict.

We have carefully examined the transcript in this case and find that the evidence for the state discloses substantially the following facts:

That the complaining witness, Ricks, was the owner at one time of a small, red cow, said to have been a cross between a Jersey and Durham. The witness Ricks in describing his cow testified that she was hip-knocked, which was very noticeable, and that it would be hard for any person who saw the cow not to notice this deformity, that she had very peaked hips, a small head and large eyes. Ricks testified that the last time he saw this cow was in June, 1917, but that he heard during the early part of November, 1917, that she was up near a Mr. Fredericksen's field, about five or six miles west of Weston.

Ricks and a neighbor made search for the animal, but did not find her. Finally Ricks went to the slaughter-house of one Linquist, situate in the town of Weston, where, according to his testimony, he found evidences of an animal having been recently slaughtered. He further testified that he found, about a rod south of the slaughter-house, certain legs belonging to an animal that had been recently slaughtered, but was not permitted, under the ruling of the court to testify whether the legs were the legs of the cow owned by him, but was permitted to testify that the color of the hair remaining on the head and legs was the same color as that of his cow. He also testified that down in the brush, about 75 or 100 yards from the slaughter-house, he found the entrails of an animal, and later found the head of an animal, which he described as a small head, with projecting eyes and large eye-sockets, being a head similar to the head of the animal he lost, but was not permitted to testify that in his best judgment the head and feet found by him were the head and feet of the cow that he had lost, but did testify that the head and feet belonged to the same animal.

It appears that when this head was found by the prosecuting witness, he hid it and subsequently went back to the slaughter-house with the sheriff, where he exhibited what he claimed to be the head he had theretofore found, which was marked and again hid.

Upon the trial he identified the head and legs as the ones he had theretofore found, and which were admitted in evidence as a part of the state's case.

He further testified that he overheard a conversation between the sheriff and appellant, in which the sheriff asked appellant what he had done with the hide of the animal he sold to Linquist, to which appellant answered that he had sold the hide to a small, heavy-set man who was passing through, driving a bay team and an old wagon in which he had four or five beef hides and some pelts.

The prosecuting witness was not able to state whether there was a brand upon this particular animal or not, or in what manner she was ear-marked other than that her ears were pretty badly cut up, that she was a very old cow, that her feet were badly worn, and that she had large eyes, a dish face and a large girth.

Joseph Allen, a witness for the state, testified that during the month of November, 1917, he had in his field a little, red cow, with a hip knocked down, belonging to the prosecuting witness, that the last time he saw her was on the evening of November 3, 1917, that his field is just south of Weston village and east and south of the Linquist slaughter-house, and that the color of the legs and head of the Ricks' cow was the same as that of exhibits "A" and "B."

Frank T. Merrill, sheriff of Franklin county, and also a witness for the state, testified that when he talked with appellant the latter stated that he had sold the hide from the cow...

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14 cases
  • State v. Olin
    • United States
    • Idaho Court of Appeals
    • 5 September 1986
    ...property. E.g., State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980); State v. Jesser, 95 Idaho 43, 501 P.2d 727 (1972); State v. Hurst, 36 Idaho 156, 209 P. 724 (1922); State v. Riggs, 8 Idaho 630, 70 P. 947 The definitional nexus between a "felonious" taking and the specific intent permanen......
  • State v. Kenworthy
    • United States
    • Idaho Supreme Court
    • 14 May 1948
    ... ... to felonious intent in larceny to which all the cases can be ... reconciled is that the intent of the taker must be to ... appropriate the stolen property to a use inconsistent with ... the property rights of the person from whom it was ... In the ... case of State v. Hurst, 36 Idaho 156, 209 P. 724, ... 726, a grand larceny case, reversed and remanded, is the ... following: ... "In ... order to establish, either by pleading or proof, the crime of ... grand larceny, it must appear that the property belonged to ... some particular person; that it was ... ...
  • State v. McLennan
    • United States
    • Idaho Supreme Court
    • 3 January 1925
    ...incapable of explanation on any other reasonable hypothesis than that of guilt. (State v. Marcoe, 33 Idaho 284, 193 P. 80; State v. Hurst, 36 Idaho 156, 209 P. 724; State v. Sullivan, 34 Idaho 68, 199 P. State v. Blank, 33 Idaho 730, 197 P. 821; State v. Lumpkin, 31 Idaho 175, 169 P. 939.) ......
  • State v. Hix
    • United States
    • Idaho Supreme Court
    • 21 April 1938
    ...reasonable hypothesis than that of guilt." (State v. Marcoe, 33 Idaho 284, 193 P. 80; State v. Levy, 9 Idaho 483, 75 P. 227; State v. Hurst, 36 Idaho 156, 209 P. 724; State v. McLennan, 40 Idaho 286, 231 P. "A charge of murder in the first degree includes a charge of murder in the second de......
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